by Brian A. Wilson
As the American trial by jury system approaches its 400th year, unlawful discrimination in the selection of jurors remains a pressing issue. The peremptory challenge process – by which a party may object to the seating of a juror for virtually any reason without having to explain its motivation – has faced increasing scrutiny in the criminal trial context. Though not constitutionally guaranteed, the peremptory challenge has been hailed as having an “important role in assuring the constitutional right to a fair and impartial jury,” enabling a defendant to eliminate prospective jurors “whom he perceives to be prejudiced against him” or who may be “harboring subtle biases.” It has simultaneously been criticized as a means by which prosecutors and defense attorneys engage in racial discrimination with virtual impunity, be it purposeful or motivated by implicit bias.
The Current Batson-Soares Framework
Over the past four decades Massachusetts has stood at the forefront of reform aimed at curbing discriminatory jury selection practices. Seven years before the United States Supreme Court held that a challenge based solely on race violates the Fourteenth Amendment’s Equal Protection Clause, and fifteen years before it deemed solely gender-based challenges to be similarly unconstitutional, the Supreme Judicial Court (SJC) held in Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979), that Article 12 of the Massachusetts Declaration of Rights precludes the exclusion of jurors on the basis of “sex, race, color, creed or national origin.” Soares established a method for analyzing the validity of a peremptory challenge that would influence the Supreme Court’s creation of its landmark framework in Batson v. Kentucky, 476 U.S. 79 (1986).
Massachusetts’s “Batson–Soares” analysis presumes that parties exercise peremptory challenges lawfully, but permits a party to object to a strike on grounds that it was motivated by unlawful discrimination. A timely objection entitles that party to an immediate “three-step” hearing. At step one, the objecting party bears the burden of establishing a prima facie case that the strike was “impermissibly based on race or other protected status by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” If the objecting party satisfies this “minimal” requirement, the hearing proceeds to step two and the burden shifts to the party that lodged the strike to justify it on “group-neutral” grounds. So long as that party offers a reason that is group-neutral on its face, the hearing proceeds to step three, at which the judge determines whether the explanation is “both adequate and genuine.” If the judge so finds, the peremptory challenge stands and the prospective juror is excluded; otherwise the strike is denied, and the juror is seated.
Commonwealth v. Sanchez: A Proposal to Eliminate Step One
Acknowledging the possibility of confusion regarding the Batson–Soares first step burden, in Commonwealth v. Sanchez, 485 Mass. 491 (2020), a decision authored by Justice Gaziano, the SJC clarified that the objecting party need only demonstrate an “inference,” rather than a “likelihood,” of discriminatory purpose and no longer would it need to show a “pattern” of discrimination. The case was significant for another reason, however: it marked the first time that a justice proposed, in a published opinion, eliminating step one entirely. Justice Lowy in his concurrence recommended that “upon timely objection to a peremptory challenge made on the basis of race or another protected class, [the judge] should conclude that that party has met the first prong of the Batson-Soares test.” Justice Lowy argued this would “impose a process that recognizes not just the perniciousness of racial discrimination, but implicit bias as well”; create “a fairer process for the parties, attorneys, prospective jurors, and the court”; and “result in fewer avoidable reversals of convictions.” (This last point is discussed in more detail below.) In a separate concurrence, Chief Justice Gants agreed that “there are sound reasons to consider abandoning the first prong of the Batson-Soares test,” but only “in a case where the question is squarely presented” and where the Court would “have the benefit of briefing by the parties and amici.”
The majority was “unconvinced that removing the first step entirely is quite as simple or salutary as [Justice Lowy’s] concurrence suggests.” The majority voiced concern that since “every potential juror is a member of some discrete race or gender, every peremptory strike then would be subject to challenge and explanation.” This, it opined, would lead to two possibilities: (1) that the Court would require a party to have a good faith basis for objecting to a challenge, which “merely would reinstate the first step of the Batson inquiry in a different guise,” or (2) that it would impose no such requirement, which would create “a strong incentive to challenge every peremptory strike” because even an unsuccessful objection, “at a minimum, could reveal something of the opposing trial strategy.” The latter course, the majority warned, “would alter the nature of a peremptory challenge so fundamentally that it would raise the question whether peremptory challenges simply should be abolished.”
Eliminating step one would put Massachusetts in the company of only six jurisdictions – Connecticut, Florida, Missouri, South Carolina, Washington, and the United States Court of Military Appeals – that have departed from the Batson framework and require only that a defendant object on grounds of unlawful discrimination to satisfy the prima facie burden and trigger step two of the hearing. As significantly as it would alter the Batson–Soares test, however, Justice Lowy’s proposal does not represent as radical a departure from Massachusetts practice as it may seem. For years the Commonwealth’s judges have, upon objection to a challenge, remained free to bypass step one sua sponte; the SJC has “persistently urged, if not beseeched, judges to reach the second prong and elicit a group-neutral explanation regardless of whether they find that the objecting party has satisfied the first prong.” In fact, Massachusetts stands among a handful of states that empower a trial judge to object to a challenge sua sponte, thereby triggering a Batson hearing even where the non-challenging party remains silent.
Legislative Intent to Eliminate Step One
A bill entitled “An Act Addressing Racial Disparity in Jury Selection” (Senate Bill 918), which would create a new statutory framework for analyzing the validity of peremptory challenges, is currently under consideration in the Massachusetts Legislature. Virtually identical to a court rule Washington enacted in 2018, the law would essentially eliminate step one of the Batson-Soares test by mandating that, upon a timely objection by the opposing party or the judge sua sponte, the proponent of the strike “shall articulate the reasons the peremptory challenge has been exercised.” Following what is essentially step two in its current form, the judge would then conduct the equivalent of step three and “evaluate the reasons given to justify the peremptory challenge in light of the totality of circumstances.” Factors the judge would consider in determining their validity include, but would not be limited to:
 the number and types of questions posed to the prospective juror, which may include consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the alleged concern or the types of questions asked about it; . . .  whether the party exercising the peremptory challenge asked significantly more questions or different questions of the potential juror against whom the peremptory challenge was used in contrast to other jurors;  whether other prospective jurors provided similar answers but were not the subject of a peremptory challenge by that party;  whether a reason might be disproportionately associated with a race or ethnicity; and  whether the party has used peremptory challenges disproportionately against a given race or ethnicity, in the present case or in past cases.
The trial judge would ultimately determine whether “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge.” If so, the judge would deny the challenge, even in the absence of a finding of “purposeful discrimination.”
The bill enumerates seven reasons deemed “presumptively invalid,” all of which the Washington rule recognizes as “historically . . . associated with improper discrimination in jury selection”:
(1) having prior contact with law enforcement officers; (2) expressing a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling; (3) having a close relationship with people who have been stopped, arrested, or convicted of a crime; (4) living in a high-crime neighborhood; (5) having a child outside of marriage; (6) receiving state benefits; and (7) not being a native English speaker.
The bill also acknowledges, as does the Washington rule, the concern that attorneys often cite a venireperson’s behavior in court to disguise a racially motivated strike. The bill mandates that any challenge “based on the prospective juror’s conduct (i.e. sleeping; inattentive; staring or failing to make eye contact; exhibiting a problematic attitude, body language, or demeanor; or providing unintelligent or confused answers) . . . must be corroborated by the judge or opposing counsel or the reason shall be considered invalid.”
One Further Consideration
While several states are debating whether to continue following the Batson protocol, whether Massachusetts retains step one is a critical issue in part because of the legal consequences of a “first-step error” relating to a prosecutor’s peremptory challenge. The SJC deems an incorrect ruling that the defendant failed to establish a prima facie case of unlawful discrimination a “structural error” that automatically requires a new trial. The Court consistently declines to follow the practice of federal and most state appellate courts, which typically remand for a hearing to allow the trial judge to conduct the belated step two and step three analyses. Therefore, the erroneous termination of the inquiry at step one and resulting absence of any explanation from the prosecutor – which is wholly within the province of the trial judge to order sua sponte – necessarily results in a conviction being vacated, even where eliciting a legitimate race-neutral reason might be possible on remand. This rule mandated the reversal of three first-degree murder convictions within a fifteen-month span in 2017 and 2018, which Justice Lowy cited as proof of step one’s “unnecessary and inefficient” nature.
Though the Court has not revisited the question since Sanchez, the viability of Batson–Soares in its current form remains a live issue. It appears the Judiciary, the Legislature, or both will decide before long whether to retain the “minimal” burden of proving a prima facie case of unlawful discrimination, to eliminate step one entirely, or to adopt some middle ground. Meanwhile trial judges across the Commonwealth will, unlike in most other states, enjoy broad discretion to require an attorney to justify a challenge even in the absence of an objection. As such, Massachusetts remains at the forefront of the movement to end unlawful discriminatory selection practices.
 Commonwealth v. Bockman, 442 Mass. 757, 762 (2004).
 See generally Batson v. Kentucky, 476 U.S. 79 (1986).
 See generally J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).
 Soares, 377 Mass. at 488-89.
 Commonwealth v. Jackson, 486 Mass. 763, 768 (2021) (internal quotations omitted); Commonwealth v. Sanchez, 485 Mass. 491, 510 (2020). See also Batson, 476 U.S. at 96-98 (defendant must first demonstrate “the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. . . . Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation. . . . The trial court then will have the duty to determine if the defendant has established purposeful discrimination”). Acknowledging “the variety of jury selection practices” followed nationwide, the Supreme Court left the states to decide whether to adopt Batson’s procedural framework. See id. at 99 & n.24.
 Sanchez, 485 Mass. at 492.
 Id. at 515 (Lowy, J., concurring).
 Id. at 518 (Gants, C.J., concurring).
 Id. at 513 n.19. Several since-retired justices have called for the elimination of peremptory challenges entirely. See Commonwealth v. Maldonado, 439 Mass. 460, 468 (2003) (Marshall, C.J., concurring) (joined by Justices Greaney and Spina in noting that “it is all too often impossible to establish whether a peremptory challenge has been exercised for an improper reason” and declaring it “time to either abolish them entirely, or to restrict their use substantially”); Commonwealth v. Calderon, 431 Mass. 21, 29 (2000) (Lynch, J., dissenting) (suggesting that “rather than impose on trial judges the impossible task of scrutinizing peremptory challenges for improper motives, we abolish them entirely”).
 See State v. Holloway, 553 A.2d 166, 171 (Conn.), cert. denied, 490 U.S. 1071 (1989); State v. Johans, 613 So.2d 1319, 1321 (Fla. 1993); State v. Parker, 836 S.W.2d 930, 938 (Mo. 1992); State v. Chapman, 454 S.E.2d 317, 320 (S.C. 1995); United States v. Moore, 26 M.J. 692, 698-700 (A.C.M.R. 1988) (en banc); Wash. Gen. R. 37(d) (2018). California will likewise eliminate step one in criminal trials beginning on January 1, 2022. See Cal. Civ. Proc. Code § 231.7 (2020). In Hawaii a prima facie case is established where a prosecutor strikes all members of the venire who share a common identity group with the defendant. See State v. Batson, 788 P.2d 841, 842 (Haw. 1990).
 Sanchez, 485 Mass. at 515 (Lowy, J., concurring). See also Commonwealth v. Issa, 466 Mass. 1, 11 n.14 (2013) (urging judges to “think long and hard before they decide to require no explanation from the prosecutor for the challenge”).
 See Commonwealth v. Smith, 450 Mass. 395, 405, cert. denied, 555 U.S. 893 (2008) (where defense counsel does not object to prosecutor’s challenge, “a judge may, of course, raise the issue of a Soares violation sua sponte”); Commonwealth v. LeClair, 429 Mass. 313, 322 (1999) (“Whether the [objection to the defendant’s peremptory challenge] was initially raised by the Commonwealth or the judge, sua sponte, is immaterial”).
 S. Bill 918, 192nd Gen. Ct. (Mass. 2021). See Wash. Gen. R. 37(c)&(d).
 S. Bill 918, 192nd Gen. Ct. (Mass. 2021). See Wash. Gen. R. 37(e).
 S. Bill 918, 192nd Gen. Ct. (Mass. 2021). See Wash. Gen. R. 37(g). See also Sanchez, 485 Mass. at 518-19 (finding relevant “(1) the number and percentage of group members who have been excluded from jury service due to the exercise of a peremptory challenge; (2) any evidence of disparate questioning or investigation of prospective jurors; (3) any similarities and differences between excluded jurors and those, not members of the protected group, who have not been challenged (for example, age, educational level, occupation, or previous interactions with the criminal justice system); (4) whether the defendant or the victim are members of the same protected group; and (5) the composition of the seated jury”).
 S. Bill 918, 192nd Gen. Ct. (Mass. 2021). See Wash. Gen. R. 37(e).
 S. Bill 918, 192nd Gen. Ct. (Mass. 2021). See Wash. Gen. R. 37(h).
 S. Bill 918, 192nd Gen. Ct. (Mass. 2021). See Wash. Gen. R. 37(i) (noting those reasons “also have historically been associated with improper discrimination in jury selection”).
 See Sanchez, 485 Mass. at 501-02.
 Id. at 517 (Lowy, J., concurring). See Commonwealth v. Ortega, 480 Mass. 603, 607-08 (2018); Commonwealth v. Robertson, 480 Mass. 383, 397 (2018); Commonwealth v. Jones, 477 Mass. 307, 325-26 (2017).
Brian A. Wilson is a Lecturer and Clinical Instructor within the Criminal Law Clinical Program at Boston University School of Law and supervisor of its Prosecutor Clinic. He serves as a Special Assistant District Attorney in Norfolk County, where he previously spent 17 years as an appellate and Superior Court trial prosecutor. He is a graduate of Emory University and Boston University School of Law, and is a member of the Boston Bar Association.
by Kevin J. Conroy
Earlier this year, in Kauders v. Uber Technologies, Inc., 486 Mass. 557 (2021), the Supreme Judicial Court provided further clarity on an issue likely to impact every resident of the Commonwealth and the businesses they interact with online – namely, the enforceability of agreements created through website and mobile apps, including the terms and conditions that purport to govern the use of those businesses’ online platforms.
The Test for Enforceability
In Kauders, the SJC evaluated the interface by which Uber had attempted to secure its users’ assent to its terms and conditions, including a mandatory arbitration clause. Recognizing that “[t]he touchscreens of Internet contract law must reflect the touchstones of regular contract law,” the SJC held that to create an enforceable online contract under Massachusetts law, there must be both reasonable notice of the terms and a reasonable manifestation of assent to those terms.” Id. at 572. Kauders’ two-part test is consistent with the approach taken by appellate courts from around the country as well as in a 2013 decision from the Massachusetts Appeals Court. Id. (citing Ajemian v. Yahoo!, Inc., 83 Mass. App. Ct. 565, 574-75 (2013) and Conroy & Shope, Look Before You Click: The Enforceability of Website and Smartphone App Terms and Conditions, 63 Boston Bar J. 23, 23 (Spring 2019)). See also Emmanuel v. Handy Technologies, Inc., No. 20-1378 (1st Cir. Mar. 22, 2021) (applying Kauders to find that plaintiff had formed an arbitration agreement with the defendant).
Reasonable Notice of Terms
With respect to reasonable notice, the SJC clarified that actual notice will generally be found if the user has been presented and viewed the terms, or if the user is required to interact with the terms somehow before proceeding to use the app or website. Thus, interfaces that require the user to scroll through the entire text of the terms before being allowed to progress should satisfy the reasonable notice prong of the test under Kauders. Absent actual notice, the SJC indicated that clarity and simplicity of the presentation of the terms should be the focus. If the terms are not presented directly on the screen, the full text should at least be available (if not required to be accessed) by following a clear link with minimal intermediate steps.
The SJC explained that, ultimately, reasonable notice involves a determination of whether “the offeror [has] reasonably notif[ied] the user that there are terms to which the user will be bound and [has] given the user the opportunity to review those terms.” Id. at 573. The Court noted that Uber’s notice, in contrast, was not reasonable as the terms could be reached only by following two successive links which the user was not required to access to complete the registration process. The SJC also identified several other features of Uber’s interface that detracted from the clarity of the notice of the terms. For example, the nature of the transaction – registering for an account to enable future ride services – might not suggest to a reasonable user that the user is entering into a contractual relationship governed by the extensive indemnification and waiver provisions included in Uber’s terms. The SJC also observed that the language informing the user of the contractual consequences of proceeding with the registration was displayed less prominently than other elements. That language appeared at the bottom of the screen, whereas the elements the user was required to interact with to proceed (e.g., entering payment information) drew the user’s attention away to the top of the screen.
Reasonable Manifestation of Assent
With respect to reasonable manifestation of assent, the SJC declared a clear preference for “clickwrap” interfaces in which the user is required to indicate express and affirmative assent to the terms by checking a box or clicking a button that reads “I agree” or its equivalent. The Court likened the affirmative act of clicking such a box or button of assent to “the solemnity of physically signing a written contract” and suggested that this would help alert the user to the contractual significance of their action. Where the interface does not require the user to expressly agree – as in the Uber interface at issue in Kauders – assent may still be inferred from the actions the user takes. However, the SJC cautioned that in such cases the courts would need to engage in careful consideration of the totality of the circumstances, and “it will be difficult for the offeror to carry its burden to show that the user assented to the terms.” Id. at 575.
The Court admonished that Uber’s interface obscured the connection between the user’s action and assent to Uber’s terms because the app only required the user to click a button labelled “DONE” (rather than “I agree” or “Create Account”) on the screen that provided notice of Uber’s terms. Id. at 577. To underscore that “uncertainty and confusion in this regard could have simply been avoided by requiring the terms and conditions to be reviewed and a user to agree,” the SJC compared Uber’s rider registration interface (at issue in the case) with its separate, driver registration interface. The latter required prospective drivers to confirm at least twice that they had reviewed and accepted the terms of the agreement by clicking a button expressly stating “YES, I AGREE.” In contrast, the SJC observed that the Uber rider interface at issue “enables, if not encourages, users to ignore the terms and condition.” Id. at 577.
The Substance of the Terms
The SJC also expressed skepticism about various aspects of Uber’s terms, including a provision that purported to permit the company to make unilateral changes to the terms without notice (placing “the burden on the user to frequently check to see if any changes have been made”). The Court likewise expressed doubt about a provision that “totally extinguishe[d] any possible remedy” against the company. While the Court did not reach the question of the enforceability of such terms given its determination that no contract had been made, it included the severe consequence of the terms in its analysis of whether reasonable notice was provided.
Kauders confirms that Massachusetts courts will closely scrutinize the manner in which websites and apps communicate, and attempt to secure users’ agreement to, the terms and conditions that purport to govern their use, particularly if there is any indication that the existence or import of the terms are minimized or obscured. Anything less than an interface that is designed simply and clearly to require (1) that the terms be viewed actively by the user (through direct display on the screen or a direct hyperlink to the full terms) and (2) that there be express and unambiguous assent (through check-the-box style interfaces or “I Agree” buttons) is likely to invite avoidable court challenges.
Kevin J. Conroy is a litigation attorney at Nystrom, Beckman & Paris in Boston. Kevin’s practice focuses on complex disputes including contract claims, insurance coverage claims, and other business disputes.
by Ralph D. Gants, former Chief Justice of the Supreme Judicial Court, and Paula M. Carey, Chief Justice of the Trial Court
Voice of the Judiciary
View and share the pdf version of the article here.
Our beloved colleague and friend Ralph Gants was passionately committed to the ideal of providing equal justice for all and, in pursuit of that goal, as Chief Justice he worked tirelessly and persistently to eradicate racial and ethnic inequities from our legal system. His dedication to this cause is evident in the following essay and the circumstances surrounding it. In response to the call in our June 3, 2020 letter to members of the judiciary and the bar to “look afresh at what we are doing, or failing to do” to address bias and inequality, Chief Justice Gants undertook this essay with Trial Court Chief Justice Paula Carey to review what the Massachusetts courts have done, and to consider what more we must do, to tackle these problems. Despite his heart attack and subsequent surgery, he returned to revising this essay on the morning of September 14, 2020, shortly before his death. It was his last act on behalf of the people of Massachusetts. The text published here is the version that he was working on at that time, and it incorporates his last revisions, with minor additional edits for accuracy and completeness.
– the Justices of the Massachusetts Supreme Judicial Court
In a recent letter to members of the Massachusetts judiciary and the bar, the justices of the Supreme Judicial Court called for a far-reaching reexamination of our legal system to address the chronic problem of racial inequity:
“[W]e must look afresh at what we are doing, or failing to do, to root out any conscious and unconscious bias in our courtrooms; to ensure that the justice provided to African-Americans is the same that is provided to white Americans; to create in our courtrooms, our corner of the world, a place where all are truly equal. . . . [W]e must also look at what we are doing, or failing to do, to provide legal assistance to those who cannot afford it; [and] to diminish the economic and environmental inequalities arising from race. . . . [W]e need to reexamine why, too often, our criminal justice system fails to treat African-Americans the same as white Americans, and recommit ourselves to the systemic change needed to make equality under the law an enduring reality for all. This must be a time not just of reflection but of action.”
This is a journey with renewed urgency, a need to travel faster and farther toward the imperative of true equality for all persons of color, but it is important to recognize that this is a journey we began many years ago, and that we are far from where we need to be. So we look back at our successes and our failures for guidance as we look ahead. As Maya Angelou once said, “If you don’t know where you’ve come from, you don’t know where you’re going.”
More than 25 years ago, the SJC issued a 200-page report on racial and ethnic bias in the Massachusetts court system. It concluded that discriminatory behavior based on racial bias or stereotypes existed throughout the courts, and recommended, among other improvements, unification and standardization of interpreter services; making court forms more widely available in translation; ensuring that minorities are fairly represented in jury pools; studying sentencing patterns to determine whether there is any disparity related to race or ethnic bias; mandating diversity and cultural sensitivity training for all court employees; establishing a rule governing fee-generating appointments to improve access to opportunities for minority attorneys; and taking steps to increase hiring and appointment of minority candidates in the court system. Since that time, our court system has made substantial progress toward many of those goals, thanks in large part to the efforts and examples of many trailblazing court leaders of color, such as former SJC Chief Justice Roderick Ireland. And yet we must also acknowledge with humility that many of these recommendations still remain relevant today, and that much remains to be done to fulfill them.
In this article, we will endeavor to describe where we in the courts have come in the past five years in attempting to address racial bias, and where we intend to go in the immediate future. In describing our path forward, we recognize that we do not have all the answers, and we emphasize that we remain open to new ideas and to all points of view, particularly from our colleagues of color; our path is not written in stone. We intend to listen, to learn from our mistakes, and to adapt to changing circumstances on this journey.
Eliminating racial and ethnic disparities in our criminal justice system. Over the last decade, numerous studies have documented how racial disparities and high rates of incarceration in our nation’s criminal justice system have had a devastating impact on communities of color. Massachusetts has one of the lowest overall incarceration rates in the nation. But, as Chief Justice Gants pointed out in his 2016 State of the Judiciary speech, Massachusetts has some of the highest rates of disparity: as a nation, in 2014, the rate of imprisonment for African-Americans was 5.8 times greater than for Whites; in Massachusetts, it was nearly eight times greater. As a nation, in 2014, the rate of imprisonment for Hispanics was 1.3 times greater than for Whites; in Massachusetts, it was nearly five times greater. In that speech, he announced that he had asked Harvard Law School to convene a team of independent researchers to analyze the data and “find out why.”
The results of that study, after four long years of research and review, have recently been released. Based on the data available from 2014-2016, the Harvard study concludes that “Black and Latinx people sentenced to incarceration receive longer sentences than their White counterparts, with Black people receiving sentences that are an average of 168 days longer and Latinx people receiving sentences that are an average of 148 days longer.” Even after accounting for factors such as criminal history and demographics, charge severity, court jurisdiction, and neighborhood characteristics, “Black and Latinx people are still sentenced to 31 and 25 days longer than their similarly situated White counterparts.” This disparity is unacceptable; the length of a defendant’s sentence should not differ due to the color of a defendant’s skin or to a defendant’s national origin.
According to the Harvard study, the disparity in the length of sentences for Black and Latinx defendants is primarily explained by differences in initial charge severity. “[T]he evidence is most consistent with Black and Latinx defendants receiving more severe initial charges than White defendants for similar conduct.” “Black and Latinx defendants tend to face more serious initial charges that are more likely to carry a mandatory or statutory minimum sentence,” even though “Black and Latinx defendants in Superior Court are convicted of offenses roughly equal in seriousness to their White counterparts” and “Black defendants in particular who are sentenced to incarceration [in state prison] are convicted of less severe crimes on average than White defendants despite facing more serious initial charges.” The Harvard researchers conclude that “racially disparate initial charging practices lead to weaker initial positions in the plea bargaining process for Black defendants, which then translate into longer incarceration sentences for similar offenses.” The impact of this disparity is particularly significant for drug and weapons charges, which carry significant mandatory minimum sentences.
In short, prosecutors are more likely to charge Black and Latinx defendants with offenses that carry a mandatory minimum sentence, and use the threat of a lengthy mandatory minimum sentence to induce a defendant to plead to a lesser offense and agree to the prosecutor’s recommended sentence, which is less than the mandatory minimum sentence but still severe. A defendant who is charged with an offense with no mandatory minimum sentence can argue to the judge that the prosecutor’s sentencing recommendation is too harsh; a defendant who pleads to avoid a mandatory minimum sentence usually needs to agree to the prosecutor’s recommendation as the price for the prosecutor dismissing the offense with the mandatory minimum sentence.
The good news is that the Legislature can greatly diminish the racial disparity in the length of sentences simply by abolishing mandatory minimum sentences in firearm and drug cases, and for those with prior firearm and drug convictions or juvenile adjudications. The criminal justice reform legislation enacted in 2018 eliminated mandatory minimums for certain drug offenses, but many remain, and it did not touch mandatory minimum sentences in firearms cases. Abolishing these remaining mandatory minimums would allow judges in these cases to determine the appropriate length of a sentence based on an individualized evaluation of the circumstances of the crime and of the offender in accordance with the best practices we have established, which they cannot do when the sentence is determined by a statutory mandatory minimum.
The bad news is that, where prosecutors use the leverage they can gain from mandatory minimum sentences by agreeing to dismiss those charges only in return for an agreed-upon sentence, there is little that a judge can do other than accept that recommendation; rejecting the agreement would force the defendant to trial, where he or she would face a longer mandatory minimum sentence if convicted.
In cases where judges are free to exercise their discretion in determining an appropriate sentence upon conviction, we have taken steps to ensure that each sentence is appropriately tailored to the circumstances of the offense and the individual defendant. In 2014, we asked our criminal courts – the Superior Court, the District Court, the Boston Municipal Court, and the Juvenile Court – to convene working groups to develop sentencing best practices to guide our judges. These guidelines emphasized the importance of individualized, evidence-based sentences, taking into account the nature of the offense and the unique circumstances of each particular defendant. For example, the Superior Court’s report on best practices recognized that “[s]entencing practices over the last quarter century have led to a dramatic increase in incarceration without reducing recidivism.” It stated that imprisonment is certainly necessary and appropriate in cases involving serious crimes, but incarceration may be counterproductive if imposed for low-level offenses: “Studies show that, rather than reducing crime, subjecting low-level offenders to periods of incarceration may actually lead to an increase in crime based on the prisoner’s adoption of criminogenic attitudes and values while incarcerated, and based on the legal barriers and social stigma encountered after release.” The guidelines also highlighted the importance of setting individually tailored conditions of probation that consider the risk-levels and needs of each probationer.
Although the discretion of judges is limited where the Legislature has imposed mandatory minimum sentences, we will be reconvening our working groups on sentencing best practices to focus specifically on preventing any disparities that might arise from a defendant’s race, ethnicity, and class. We will take a fresh look at these sentencing best practices through the lens of race, ethnicity, and class.
We will also look at our bail practices with this same lens. Although bail was not the focus of the Harvard report, it noted that bail is set in a slightly higher percentage of cases involving Black and Latinx defendants as compared to White defendants, and that Black and Latinx defendants are slightly more likely than White defendants to be unable to pay bail for the duration of the case, thus increasing their time in jail. Additionally, a slightly higher percentage of Black and Latinx defendants are detained without bail as compared to White defendants.
Improving our data collection to identify and remedy racial and ethnic disparities in judicial decision-making. The Harvard study was limited by the data on race and ethnicity that was available from our court database in 2014-2016. Many of these limitations no longer exist because of improvements in our data collection, but we recognize that we can do better. For fiscal year 2019, we have race data for 82 per cent of criminal defendants and ethnicity data (Hispanic/non-Hispanic) for 59 per cent of criminal defendants. We will strive to continue making improvements as quickly as possible.
We are also beginning to keep data regarding race and ethnicity in show cause hearings and in certain types of civil cases, beginning with eviction cases in our Housing Court. This information is essential to determine whether racial and ethnic disparities exist in the outcomes of show cause hearings and civil cases.
Rooting out bias and promoting equity and inclusion within our court system. More broadly, we must strive to eliminate bias in all aspects of our court system, to ensure that all court users are treated respectfully and fairly, and to provide a supportive and inclusive work environment for all court employees.
Since 2015, the Trial Court, in collaboration with the SJC, has been engaged in a comprehensive initiative to address issues of bias in our court system. As a first step in this process, we held a mandatory day-long all-court conference in September 2015 to open a dialogue among Massachusetts judges to consider the impact of implicit bias on the work we do in courthouses across the Commonwealth. Based on what was learned at that conference, each Trial Court department developed implicit bias benchcards, which were shared with all judges and magistrates. Additionally, follow-up events were held by subject matter, such as civil or criminal matters where scenarios were reviewed to identify issues of bias.
Subsequently, the Trial Court established a Race and Implicit Bias Advisory Committee, which oversees related committees in each department, and created an Office of Diversity, Equity, Inclusion and Experience, headed by Chief Experience and Diversity Officer John Laing. The Trial Court also retained two nationally recognized consultants from Columbia Law School’s Center for Institutional and Social Change (CISC) to help develop strategies to address racial bias.
Working together, Trial Court leadership, the Trial Court Race and Implicit Bias Advisory Committee, the Office of Diversity, Equity, Inclusion and Experience, and CISC have sought to transform Trial Court culture by integrating diversity, equity, and inclusion efforts into all aspects of court operations, including recruitment and hiring, training, staff meetings, conflict resolution, and strategic planning; by developing and implementing a system-wide, evidence-based curriculum and methodology that bring together employees with different roles and identities, and build the capacity of employees throughout the court system to discuss race and bias openly and constructively, intervene constructively when issues involving race and bias arise, and hold each other accountable; and by building a self-sustaining infrastructure so that, going forward, the Trial Court continually trains employees and develops leadership in addressing race and bias.
The Trial Court has sought to implement these strategies through a number of programs administered by the Office of Diversity, Equity, Inclusion and Experience. More than 130 Trial Court judges and staff members have participated in Leadership Capacity Building Workshops designed to support judges and court staff in leading difficult conversations on race and identity and addressing issues involving diversity, equity, and inclusion when they arise. Approximately 90 percent of Trial Court personnel have engaged in Signature Counter Experience training — a customer service course that is designed to ensure that all court users are treated respectfully and professionally throughout the courthouse. The Office of Diversity, Equity, Inclusion and Experience has created a program entitled “Beyond Intent,” which seeks to educate court members about the harmful impact that words and actions can have on colleagues and court users even though no injury was intended. And Superior Court Judge Angel Kelley Brown and Chief Diversity and Experience Officer John Laing are also preparing a video for all judges and court staff urging them to be “upstanders” — to stand up against acts or words reflecting bias, conscious and unconscious, whenever they see them.
Another important step we have taken in our Trial Court is to promulgate a new and comprehensive anti-discrimination policy and establish a new Office of Workplace Rights and Compliance to enforce the new policy. This Office addresses and investigates concerns and complaints of discrimination, harassment, or retaliation involving protected categories such as race, gender, or disability.
We are also educating ourselves on the tragic history of racism in this country and how to combat it more effectively. In April 2019, 50 judges travelled together (paying our own way) to Montgomery, Alabama to visit the Legacy Museum and the National Memorial for Peace and Justice commemorating victims of lynching, both created by Bryan Stevenson’s Equal Justice Initiative. In October 2019, Bryan Stevenson in turn visited us and spoke to more than 140 judges at a forum sponsored by the Flaschner Judicial Institute. And in July 2020, more than 115 judges heard Professor Ibram X. Kendi, author of How to Be an Antiracist, via Zoom, again courtesy of the Flaschner Institute. The Flaschner Institute, through the leadership of its new Chief Executive Officer, retired Appeals Court Justice Peter Agnes, has also planned programs on race and the criminal justice system. The thirteen judges on the Superior Court’s Race and Implicit Bias Committee are participating in, and invited other judges to participate in, the “21-day challenge for racial equity,” which consists of reading, watching and/or listening to one or more pieces about racism every day, using a syllabus put together by a section of the American Bar Association.
Despite these efforts, we recognize that we still have much work to do to root out bias in all aspects of our court operations. For example, our recent discussions with attorneys of color have alerted us to the racial profiling they too often experience from our court officers when they attempt to enter our courthouses or our courtrooms, where they are not treated as attorneys doing their jobs, but are mistakenly profiled as criminal defendants, or the family members or friends of criminal defendants. The Trial Court Security Department has instituted implicit bias training to address this concern. And we have established a hotline in the Trial Court’s Office of Workplace Rights and Compliance – 617-878-0411 – that attorneys and members of the public can call either to lodge a complaint about acts of bias by judges and court staff, or simply to call out such conduct and request that it be corrected.
Increasing diversity in our court system. Another means of fighting racial and ethnic inequity in our legal system is by increasing the diversity of court personnel. A more diverse workforce brings a broader range of perspectives into the courts and thereby helps to educate us all about the experiences of people who are different from us in race and ethnicity, as well as gender identification, sexual orientation, or class background. A court workforce that mirrors the diversity of our Commonwealth also promotes litigants’ trust in the equity of our judicial system. As stated in the Trial Court’s Strategic Plan 3.0 (July 2019), “we want our workforce to reflect the diversity of our users and to be culturally competent and welcoming.” Accordingly, we have made it a strategic priority to increase the diversity of our workforce through recruitment, outreach, career development, and promotion.
Of course, many positions in the court system are not subject to the courts’ control. Judges and clerk-magistrates are appointed by the Governor, with the advice and consent of the Governor’s Council, while certain other clerks of court and registers are elected. But where the courts have the authority to make their own employment decisions, we can use this power to increase the diversity of our court personnel by hiring and promoting qualified candidates of color.
To measure progress toward this goal, the Trial Court has instituted an annual Diversity Report. The initial Diversity Report, issued for Fiscal Year 2017, showed that overall 23% of Trial Court employees were members of racial/ethnic minority groups, which was consistent with the overall race/ethnic percentage (21%) of the Massachusetts Labor Market as reported in the 2010 census. Since then, the Trial Court has continued to move forward, and as of Fiscal Year 2019, the percentage of race/ethnic minority Trial Court employees had increased to 26% of all Trial Court employees. The Trial Court has also made improvements in the percentage of race and ethnic minorities employed in its managerial ranks. Between Fiscal Year 2017 and Fiscal Year 2019, the percentage of race/ethnic employees has increased from 16.1% to 23.6% of officials and administrators, and from 23.2% to 24.6% of professionals.
Each year, we celebrate our increased diversity with annual cultural appreciation events that encourage court staff to share and learn more about each other’s cultural heritage. What began as a day of cultural appreciation events has evolved into a week of such events, celebrated throughout our courts.
But as in other areas, our efforts to improve the diversity of our workforce must continue. In particular, as Chief Justice Carey recently noted, “[t]he number of Black employees and employees of color is insufficient in the judicial and clerk-magistrate ranks.” While we do not have control over these appointments, we do have an “obligation to hire people of color in leadership roles and do more to mentor our diverse talent and create pathways that would enable them to move up in the organization” and “build the skills to obtain a judicial or clerk-magistrate appointment and other positions within the court system.”
Becoming “more proximate” with communities of color. We recognize the need, in the words of Bryan Stevenson, to get more “proximate” with communities of color, so that we better understand the experience of these communities with our courts and can attempt to address their concerns. Massachusetts was among six states chosen nationally by the National Center for State Courts to participate in a pilot community engagement program to increase public trust and confidence in the courts. Through this program, the Office of Diversity, Equity, Inclusion and Experience has worked with local court and community leaders to hold a variety of public forums designed to educate participants about court procedures, answer their questions, and address their concerns. Judges and justices have also participated in town halls and listening sessions, in person and virtually, in communities of color throughout the Commonwealth. And we shall continue to do so in the coming months.
Conclusion. We recognize that we have miles to go in addressing the effects of systemic racism and bias in our courts. But it is also important to recognize that we have already begun this journey and that we are deeply committed to continuing to make progress as quickly as we can, for failure is not an option. To paraphrase the old civil rights song, we will not “let anything turn us around” as we march down that road. And as we do so, we invite your observations, your suggestions, your engagement, and, yes, your constructive criticisms, to help us see the way forward more clearly.
 Equal Justice: Eliminating the Barriers, Supreme Judicial Court Commission to Study Racial and Ethnic Bias in the Courts, Sept. 1994.
 See The Sentencing Project, State-by-State Data(showing Massachusetts as having the second lowest rate of incarceration among all states, based on U.S. Bureau of Justice Statistics data for 2018).
 Annual Address: State of the Judiciary, Ralph D. Gants, Oct. 20, 2016, at 5, citing Selected Race Statistics,
Massachusetts Sentencing Commission, Sept. 27, 2016, at 2.
 Id. at 63.
 Id. at 64.
 Criminal Sentencing in the Superior Court: Best Practices for Individualized Evidence-Based Sentencing, March 2016; updated October 2019, at iv.
 Id. at v.
 Racial Disparities in the Massachusetts Criminal System, at 23-24.
 Altogether, we have we have data on the race or ethnicity, or both, of nearly 93 per cent of criminal defendants.
 See www.americanbar.org/groups/labor_law/membership/equal_opportunity/?fbclid=IwAR1lHvCxX9RzWp0u7FarSzDm3JhPEHS6GRK76uwtKSgL2pCOMSGcbqVkTZY or www.americanbar.org/groups/public_contract_law/leadership/21-challenge/.
 Massachusetts Trial Court Annual Diversity Report Fiscal Year 2018, at 12; Annual Diversity Report Fiscal Year 2019, at 12.
 Paula M. Carey, Reflections on a ‘particularly symbolic’ Juneteenth, Massachusetts Lawyers Weekly, June 25, 2020.
by Martin Murphy
Chief Justice Ralph D. Gants’ death on September 14 left a gaping hole in the fabric of the Massachusetts legal community. For many lawyers—myself included—the news we received that Monday afternoon seemed simply unworthy of belief. Chief Justice Gants was just too full of energy and optimism and life to be gone so suddenly. We knew, of course, that he’d suffered a heart attack ten days earlier. But we expected a full recovery. After all, we knew he had much left to do.
Now, nearly three months later, that terrible news has begun to sink in. And so we dedicate this special issue of the Boston Bar Journal—one the BBA wishes it had no need to publish—to Chief Justice Gants. Appreciating the full scope of anyone’s legacy, and certainly the legacy of someone so deeply dedicated to justice as Chief Gants, is no easy task only 90 days after his death. But we can at least begin to appreciate that legacy now, for there is no doubt he left an extraordinary mark on our law, our courts, and on the thousands of Massachusetts residents who feel their impact every day.
Nowhere was the Chief’s impact felt more deeply than in his work on the Massachusetts criminal justice system, particularly his outspoken advocacy against minimum mandatory sentences and systemic racism—issues that have also been at the center of the BBA’s work.
After being sworn in as Chief in 2014, Chief Justice Gants jumped into the controversy about minimum mandatory sentences with both feet. He made his first State of the Judiciary address on October 16, 2014—just 80 days after being sworn in as Chief Justice—and made his priorities plain, calling for “individualized, evidence-based sentences.” Mandatory minimum sentences, the Chief noted, interfered with sentencing judges’ ability to impose what he called “hand-crafted sentences.”
This was not about guarding judicial prerogative. The Chief Justice made clear that a primary concern was about the effects of mandatory minimum sentences. As he wrote: “Mandatory minimum sentencing in drug cases has had a disparate impact upon racial and ethnic minorities.” He marshalled the statistics, noting that racial and ethnic minorities accounted for less than one-third of convicted offenders, but comprised “75% of all those convicted of mandatory drug offenses.”
Chief Justice Gants’ 2014 address was remarkable, but it was only the beginning of his work on racial justice in the criminal justice system. First, he made sure the judiciary’s own house was in order by directing the Trial Court to develop and make public a comprehensive set of best practices in sentencing based on social science data and research. In 2015, he joined Governor Baker and the state’s legislative leaders in inviting the Council of State Governments to do what he described in his State of the Judiciary address that year as a “deep dive” into the State’s criminal justice system, and he committed publicly, “Follow the data and allow it to drive the analysis, letting the chips fall where they may.” And in 2016, Chief Justice Gants announced that he had asked Harvard Law School Dean to “gather an independent research team to explore the reasons for racial and ethnic disparity in the incarceration rate in Massachusetts.” “We need to learn the truth behind this troubling disparity,” the Chief said, “and once we learn it, we need the courage and commitment to handle the truth.”
Chief Justice Gants’ commitment to criminal justice reform has already produced results. In 2018, following the Council of State Governments report that Chief Justice Gants had called for—and a report by the BBA we were proud to see Chief Justice Gants praise in his 2017 State of the Judiciary address—Massachusetts eliminated a number of mandatory sentences in drug cases, reduced penalties for others, and enacted other reforms. But the Chief characteristically refused to rest on his laurels. “The landmark legislation enacted this year is an impressive beginning to criminal justice reform,” he said, “but it is only a beginning.”
On September 9, the day after Chief Justice Gants announced that he had had a heart attack, and less than a week before his death, Harvard Law School’s Criminal Justice Policy Program released the study of racial disparities in the Massachusetts criminal justice system Chief Gants had called for in 2016. The study paints an extraordinarily disturbing portrait of our criminal justice system in action. Here are five of the report’s key findings:
- “The Commonwealth significantly outpaced national race and ethnicity disparity rates in incarceration, imprisoning Black people at 7.9 times that of White people and Latinx people at 4.9 times that of White people.”
- “Among those sentenced to incarceration, Black and Latinx people sentenced to incarceration receive longer sentences than their White counterparts.” For Black people, the average is 168 days longer; for Latinx individuals, an average of 148 days longer.
- “[O]ne factor—racial and ethnic differences in the type and severity of initial charge—accounts for over 70 percent of the disparities in sentence length.”
- Black and Latinx people charged with drug and weapons offenses are more likely to be incarcerated and receive longer sentences than White people charged with similar offenses. “This difference persists after controlling for charge severity and other factors.”
- “Black and Latinx people charged with offenses carrying mandatory minimum sentences are substantially more likely to be incarcerated and receive longer sentences than White people facing charges carrying mandatory minimum incarceration sentences.”
Much of this comes as no surprise to anyone with experience in the Massachusetts criminal justice system. But, thanks to Chief Justice Gants, we now have data, not just anecdotes, to use as tools to fight minimum mandatory sentences and charging decisions that deepen the impacts of systemic racism.
Chief Justice Gants’ challenge to each of us as lawyers, and to organizations like the BBA, is simple: the data proves the system is broken; what will we do to fix it? To honor Chief Justice Gants’ legacy, we need to do more than spot the issues. It’s time for action.
by Jonathan Klavens, Courtney Feeley Karp, and Elizabeth Mason
 As it becomes more challenging to develop large-scale solar projects in Massachusetts, it is worth taking a closer look at “dual use” or “agrivoltaic” projects – solar projects designed with specially elevated and spaced solar panels to allow for continued agricultural use of the land beneath. Some view solar development on “greenfield” sites (open space, forested land, farmland) as less desirable than installing solar on rooftops, parking lots, brownfields, and other previously developed sites. Agrivoltaic projects present an important opportunity to install additional clean energy generation in Massachusetts without the trade-offs often associated with greenfield development. Any solar project where farmland is converted to exclusive solar use gives the landowner the opportunity to supplement farm income by renting out a portion of the land to a solar developer. An agrivoltaic project can provide supplemental income without loss of farmland; it can even lead to the creation of new farmland or more active use of existing farmland, such as upgrading a hayfield to a vegetable farm. An agrivoltaic project can also play a dual role in the fight against climate change: increasing the share of energy generated from carbon-free sources while also promoting regenerative agriculture, the cultivation of plants and healthy soil that can help reduce the atmosphere’s existing carbon load. This article looks at three different regulatory frameworks that impact the development of agrivoltaic projects in Massachusetts: zoning; the Commonwealth’s solar incentive program; and taxation of agricultural land.
Local Permitting of Solar Projects
Like other commercial solar projects in Massachusetts, agrivoltaic projects face an array of permitting requirements. We will focus on the zoning landscape with special attention to several trends and dilemmas.
While state law limits the application of local zoning to solar facilities and both the Land Court and Superior Court have had occasion to interpret that law in recent years, there remains a good deal of confusion about the permissible scope of local zoning authority over solar projects. Zoning regulation of solar projects is limited by M.G.L. c. 40A, § 3 (“Section 3”), which provides that “[n]o zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health, safety or welfare.” Section 3 evidences the legislature’s intent to protect solar facilities from certain local zoning restrictions but when and to what extent?
Many zoning bylaws do not mention solar energy use (or any broader use that would include solar energy use). Given that zoning bylaws almost universally prohibit uses that are not expressly permitted, this means that in the first instance solar would be prohibited under a bylaw that is silent as to solar use. In turn, however, one Land Court decision held that Section 3 would ordinarily preempt that prohibition, effectively rendering solar use a use allowed by right.
Notwithstanding Section 3, more and more municipalities are adopting solar bylaws that regulate solar projects in one or more ways. Some provide that solar projects are allowed by right in certain zoning districts, with or without a requirement for site plan approval (a mechanism for imposing reasonable conditions on as-of-right uses). Others provide that solar projects are allowed by special permit in certain districts. Still other solar bylaws purport to prohibit solar use in certain districts. Where solar facilities are allowed, a solar bylaw often lays out special dimensional and other requirements, such as requirements for vegetative screening or for posting of financial assurance to cover the costs of removing the facility at the end of its useful life. Larger scale ground mounted solar projects are often the only subject of solar bylaws or are subject to more extensive requirements than other types of solar facilities.
With the proliferation of solar bylaws, questions have arisen about the extent to which they are enforceable in light of Section 3. In its role as reviewer of the legality of new bylaws, the Office of the Attorney General has admonished municipalities to consult with counsel to ensure they do not run afoul of Section 3, but has not rejected any solar bylaw as facially inconsistent with Section 3. In addition, courts have offered some guidance, providing several prospective “rules of thumb” to local zoning boards and solar developers. For example, although a special permit granting authority (“SPGA”) can ordinarily exercise broad discretion to deny a special permit, it likely cannot do so outside the bounds of Section 3. Moreover, certain bylaw requirements (or permit conditions) may be inconsistent with Section 3 on an as-applied basis because they effectively prohibit a project or are not “necessary to protect public health, safety or welfare.” For example, given the benign nature of a typical ground mount solar facility it might be difficult to justify a 200-foot setback requirement as necessary to protect public health, safety or welfare.
It is also unclear under Section 3 under what circumstances a municipality may allow solar energy use in certain districts while prohibiting it in others. There are two keys ways of viewing this issue through the lens of Section 3. One view is that if a municipality allows solar energy use in at least some locations, it cannot be deemed to have “prohibit[ed]” solar use within the meaning of Section 3. The alternative view is that Section 3 bars a municipality from prohibiting solar energy projects even in just a single district “except where necessary to protect public health, safety or welfare.” Id. While an initial Land Court decision seemed to provide some support for the first view, two subsequent clarifying Land Court decisions have endorsed the second.
In Briggs v. Zoning Board of Appeals of Marion, the Marion Zoning Board of Appeals argued that, as long as commercial solar energy use was allowed in some zoning districts, it could still be prohibited in a residential district consistent with Section 3. The court appeared to accept this reasoning, finding that it is “rational” and “reasonable” to prohibit commercial solar energy systems in residential districts, even though Section 3 expressly bars any prohibition of solar energy systems – not just irrational or unreasonable prohibition of solar energy systems – “except where necessary to protect the public health, safety or welfare.” Id. The court noted that the board made no findings on the impact of the proposed project on public health, safety or welfare, id. at *2, nor did the court in its de novo review make any such findings, see id. at *4-5.
In Duseau v. Szawloski Realty, Inc., issued nearly a year later, the court reached a similar conclusion, but only because it determined that the defendant solar developer had the burden of proving that the prohibition of solar energy use in the town’s rural residential district was not necessary to protect public health, safety and welfare and the developer never even argued the issue.
More recently, in PLH LLC v. Town of Ware, the court ruled that a municipality could not require, and then could not deny or condition, a special permit for a solar project in a particular district “except where necessary to protect the health, safety or welfare.” Notably, it appears that no court has yet concluded that a prohibition of solar energy use, or a denial of a permit for solar energy use, has been necessary to protect public health, safety or welfare under Section 3. Given that many larger solar projects are now operating (including many in residential districts) across Massachusetts, and that many municipalities that have hosted such projects are supportive of additional solar development, it seems likely that the parties to future litigation on this point will have a good deal of experience from which to draw.
In short, developers of larger solar projects must navigate local land use regulation and differing interpretations of Section 3 as to which aspects of local regulation are actually enforceable. Meeting the Commonwealth’s clean energy goals will likely require more balanced regulation and more certainty about how municipalities can lawfully regulate clean energy projects.
SMART Program Incentives for Agrivoltaic Projects
The Solar Massachusetts Renewable Target Program (the “SMART Program”) implemented by the Massachusetts Department of Energy Resources (“DOER”) provides a base financial incentive for production of each unit of solar energy from eligible projects in Massachusetts. The SMART Program regulations also offer extra incentives known as “adders” to promote certain types of projects, such as solar carports, solar on landfills, and community solar facilities. Agrivoltaic facilities, referred to as Agricultural Solar Tariff Generation Units (“ASGTUs”) in the regulations, are the target of one such adder. In addition to providing adders for preferred project types, the SMART Program also has what are called “greenfield subtractors” which reduce the incentive payments for solar facilities located on greenfield sites. ASTGUs are not subject to the subtractor given that the land on which they are located will continue to be farmed. ASTGUs are also exempt from strict new rules adopted in July 2020 that generally bar solar facilities from participating in the SMART Program if they are located on land designated as priority habitat, core habitat, or critical natural landscape as identified by the Massachusetts Division of Fisheries and Wildlife BioMap2 framework with the Commonwealth’s Natural Heritage and Endangered Species Program.
At the same time, the process and standards for qualification of a SMART ASTGU are quite rigorous under state regulations and guidelines. For example, the reduction of direct sunlight relating to an ASTGU cannot exceed 50% – measured on every square foot of the project site. While a SMART facility can generally be up to 5 MW AC in size, under the current ASTGU Guideline an ASTGU would typically be capped at just 2 MW AC. Id. at 3. The current regulations also contain a number of other requirements including continuous growth, growing plans, and productivity reports. 225 C.M.R. 20.06(1) (d)(3), (5); ASTGU Guideline at 3. While it is important to ensure that there are not significant detrimental effects on agriculture from an ASTGU, there could be many appropriate reasons for reduced productivity, such as a drought year or appropriate crop rotation. The approval process thus far has raised questions about the appropriate baseline for measuring impacts, determining which impacts to attribute to the solar facility or to other causes, what type or magnitude of impact would result in disqualification of an ASTGU or removal of its adder.
There may well be many more types of symbiotic solar and agricultural uses that do not fit within the current requirements for ASTGUs. For example, mushroom cultivation, beekeeping and animal husbandry are all farming activities that might benefit from shade reduction greater than 50%. The state’s Department of Energy Resources (“DOER”) has a process for seeking waivers for unique and worthwhile alternatives but obtaining an exception is not easy, quick or predictable.
Based on experience gleaned from processing ASTGU applications for almost two years, DOER has recently issued a “straw proposal” to modify the guideline governing qualification of ASTGU projects. Among other things, the straw proposal raises the possibility of allowing for ASTGUs of up to 5 MW AC in certain instances and streamlining the approval process by permitting qualification by a third party organization, which should increase speed and predictability for approval of project designs. This change would provide greater certainty for the financing of these projects and allow the full range of potential climate change benefits to come to fruition.
Property Tax Incentives for Land in Agricultural/Horticultural Use
Land in active agricultural or horticultural use is entitled under M.G.L. c. 61A (“Chapter 61A”) to reduced property tax rates. Chapter 61A land that is converted from agricultural to commercial use must be removed from Chapter 61A. So what happens when Chapter 61A land serves as the site of an agrivoltaic facility?
Before land is to be removed from Chapter 61A, the landowner must deliver to the municipality a notice of intent to convert. Such notices are accompanied by plans showing the total acreage that will cease to be farmed (the “Converted Land”) and the balance of the land that will continue to be farmed (the “Remaining Land”). The Converted Land is removed from Chapter 61A and the landowner pays roll-back taxes (and, if applicable, conveyance taxes) in connection with this removal. The Remaining Land should remain eligible for reduced taxation under Chapter 61A.
There is currently some confusion about the applicability of Chapter 61A to land under agrivoltaic facilities in light of the existence of Section 2A of Chapter 61A. Section 2A was inserted by the legislature in 2016 to address situations where ground mounted solar facilities are installed on farmland, precluding use of the land under the solar panels for agricultural or horticultural use but generating power used for the operation of the farm. Section 2A allows owners of agricultural or horticultural land who install a “renewable energy generating source” on their land which meets the requirements of Section 2A to maintain all of their land as agricultural or horticultural land under Chapter 61A, even the land that is exclusively occupied by the solar array and can no longer be farmed. Section 2A is not relevant to agrivoltaic facilities because they involve installation of solar panels above land which will continue to be farmed.
Land under and around an agrivoltaic facility is instead governed by Sections 1 and 2 of Chapter 61A. Section 1 states that land shall be considered to be in agricultural use when “primarily and directly used in raising animals, including, but not limited to, dairy cattle, beef cattle, poultry, sheep, swine, horses, ponies, mules, goats, bees and fur-bearing animals, for the purpose of selling such animals or a product derived from such animals in the regular course of business.” Section 2 states that land shall be considered to be in horticultural use when “primarily and directly used in raising fruits, vegetables, berries, nuts and other foods for human consumption for the purpose of selling these products in the regular course of business.” The Remaining Land at the site of an agrivoltaic facility, which will continue to be farmed, meets these definitions.
Note that farming the land underneath and surrounding the solar arrays of an agrivoltaic facility is something that, as noted above, facility owners are required to do under the SMART Program in order for the facilities to qualify for – and stay qualified as –ASTGUs under that program. If in the future the owner ceases farming the land underneath and surrounding the solar arrays and uses it for a non-qualifying purpose, the land would then lose eligibility for classification under Chapter 61A.
Chapter 61A and the publications of the Massachusetts Department of Revenue’s Division of Local Services (“DLS”) are clear that it is the use of the land that determines whether or not land is eligible for classification under Chapter 61A. Section 20 of a set of FAQs published by DLS states that, in the case of solar facilities that (like the agrivoltaic projects discussed here) don’t meet the requirements of Section 2A, only land “necessary for the operation of” the solar facility or “impacted by its operation” is ineligible for continued classification under Chapter 61A. The Converted Land at the site of an agrivoltaic facility meets this definition and is the portion of the land no longer eligible for taxation under Chapter 61A. The Remaining Land is not “necessary for the operation of” the solar facilities. It will continue to be farmed and should remain eligible for classification under Chapter 61A.
Whether land under and around an agrivoltaic facility can remain in Chapter 61A can have a significant impact on the economic viability of an agrivoltaic project. If land under an agrivoltaic project is not allowed to remain in Chapter 61A, that may not just mean that the project would have to be able to support higher property taxes (potentially reducing benefits to the farmer) but could also raise questions about the project’s ability to operate as an ASTGU under the SMART Program. An agrivoltaic project can qualify as an ASTGU if it is on land currently enrolled in Chapter 61A or land that has been in Chapter 61A in the previous five years. 225 C.M.R. 20.02 (definitions of ASTGU and Land in Agricultural Use). If a project also needs a waiver under the ASTGU Guideline, however, it must demonstrate that “the primary use of the land is for agricultural or horticultural production, as defined under [Chapter 61A].” ASTGU Guideline at 4. If the land is removed from Chapter 61A because of hosting the ASTGU, the rationale for such removal would presumably be that the primary use is no longer agricultural or horticultural. This would create tension rather than synergies between laws, and would highlight the importance of interagency coordination to further the Commonwealth’s policy goals, particularly with respect to climate change. Removing any uncertainty about this issue will be important to the growth of agrivoltaic facilities and the environmental and economic benefits that flow from them.
Development of larger scale solar projects is a challenging venture, and development of agrivoltaic projects involves special challenges and special opportunities. Overcoming those challenges and realizing those opportunities requires harmonization of and certainty in land use regulation, financial incentive qualification, and property taxation. Striking the right balance would be a victory for sensible land use planning, support of local agriculture, and the transition to a clean energy future.
 The authors would like to thank Sarah Matthews, senior counsel at Klavens Law Group, P.C., and Jaidyn Jackson, law student intern at Klavens Law Group, P.C., for their valuable contributions to this article.
 See Waller v. Alqaraghuli, No. 17 MISC 000233, 2017 WL 3380387, at *4 (Mass. Land Ct. Aug. 4, 2017) (Scheier, J.). Although Section 3 does allow regulation of solar facilities as “necessary to protect the public health, safety or welfare,” in the case of a local zoning bylaw whose prohibition of solar use is preempted, a local zoning board cannot then choose to regulate solar use “by a case-by-case determination by the Board.” Id. at *5 n.7.
 See, e.g., Letter from the Office of the Attorney General Municipal Law Unit to Town of Plympton, at 2 (Apr. 3, 2020) , https://massago.onbaseonline.com/MASSAGO/1801PublicAccess/mlu.htm) (input Case Number “9750”; then click “Search”; then follow hyperlink) (advising Town that, [i]n applying [solar bylaw amendments] the Town should consult closely with Town Counsel to ensure that the Town does not run afoul of [Section 3]”).
 See PLH LLC v. Town of Ware, No. 18 MISC 000648, 2019 WL 7201712, at *3 (Mass. Land. Ct. Dec. 24, 2019) (Piper, C.J.) (holding that zoning bylaw may require a special permit for solar energy use in a particular district but special permit review “must be limited and narrowly applied in a way that is not unreasonable, is not designed or employed to prohibit the use or the operation of the protected use, and exists where necessary to protect the health, safety or welfare”); cf. Waller at n.7 (suggesting that municipal authority under Section 3 to regulate solar use as necessary to protect public health, safety and welfare can only be exercised in crafting a generally applicable bylaw, not to justify case-by-case determination with respect to particular projects).
 See, e.g., Ayotte v. Town of Cheshire Planning Board, CA No. 17-275, slip. op. at 9-13 (Mass. Sup. Ct. May 4, 2018) (Ford, J.) (refusing to uphold planning board’s denial of special permit for solar project based on concerns about solar glare and inadequate screening and remanding to the board “for the consideration and imposition of any reasonable conditions”) (emphasis in original).
 Briggs v. Zoning Board of Appeals of Marion, No. 13 MISC 477257, 2014 WL 471951 at *4 (Mass. Land Ct. Feb. 6, 2014) (Sands, J.).
 Duseau v. Szawloski Realty, Inc., Nos. 12 MISC 470612, 12 MISC 477351, 2015 WL 59500 at *8 (Mass. Land Ct. Jan. 2, 2015) (Cutler, C.J.); PLH LLC, 2019 WL 7201712 at *3.
 Briggs, 2014 WL 471951 at *4.
 Duseau, 2015 WL 59500 at *8 & n.11.
 PLH LLC, 2019 WL 7201712 at *3.
 See 225 CMR 20.07(4)(g); Mass. Dep’t of Energy Resources, Guideline Regarding Land Use, Siting, and Project Segmentation at §§ 3, 4(b) (revised Oct. 8, 2020) (the “Land Use Guideline”).
 See Land Use Guideline, §§ 5(4)-(5).
 See 225 CMR 20.02 (definition of Agricultural Solar Tariff Generation Unit) and 20.06(1)(d) (eligibility requirements); Guideline Regarding the Definition of Agricultural Solar Tariff Generation Units (the “ASTGU Guideline”).
 In addition, Sections 14(A) and (B) of the FAQs state that any roll-back and conveyance tax are to be assessed “only on that portion of the land on which the use has changed to the non-qualifying use.”
Jonathan Klavens is the principal of Klavens Law Group, P.C. He practices across the fields of corporate, land use and environmental law, with a special focus on the development, financing and purchase and sale of clean energy projects, as well as the formation, financing and ongoing support of cleantech companies.
Courtney Feeley Karp is senior counsel at Klavens Law Group, P.C. where she advises clients on development and compliance matters for clean energy projects, including those located on agricultural land. Previously she served as counsel at the Massachusetts Department of Energy Resources and the Massachusetts Senate Ways & Means Committee.
Betsy Mason is senior counsel at Klavens Law Group, P.C., where she focuses her practice on resolving real estate, land use and permitting, and environmental compliance issues arising during the development, construction and acquisition of renewable energy projects. Her past positions have included, among others, in-house counsel for real estate and business development at a leading national solar developer and Senior Assistant Regional Counsel at EPA Region 1 in Boston.
Where a company chooses to incorporate directly affects the fiduciary duties imposed upon its leadership and shareholders. Under the internal affairs doctrine, the law of the state in which a company is incorporated applies to disputes over the company’s internal workings, regardless of where the company is actually based or where the alleged conduct occurred. Consequently, the distinctions between Massachusetts and Delaware corporate law take on particular importance in the context of closely held corporations and LLCs, where each state’s case law and statutes uniquely impact the imposition of fiduciary duties and the extent to which such duties can be contractually waived. Understanding these differences is essential to making informed decisions on business formation and litigation strategy.
Fiduciary Duties In Closely Held Corporations
In both Massachusetts and Delaware, a corporate fiduciary, such as a director, generally owes a duty of care and a duty of loyalty, both of which impose a responsibility to act in the best interests of the corporation and/or its shareholders. Specifically, the duty of care requires a fiduciary to act in an informed and reasonable manner, and the duty of loyalty requires a fiduciary to act in good faith with the primary intent of furthering the best interests of the company. In the context of closely held corporations, including LLCs, Massachusetts and Delaware take divergent approaches as to whether shareholders may owe each other additional or enhanced fiduciary duties.
In Donahue v. Rodd Electrotype Co. of New England, the Massachusetts Supreme Judicial Court held that a “close corporation” is typically one in which there is “(1) a small number of stockholders; (2) no ready market for the corporate stock; and (3) substantial majority stockholder participation in the management, direction and operations of the corporation.” The Donahue Court then held that “[s]tockholders in close corporations must discharge their management and stockholder responsibilities” under a standard of utmost good faith and loyalty.
Therefore, a controlling group of shareholders in a close corporation “may not, consistent with its strict duty to the minority, utilize its control of the corporation to obtain special advantages and disproportionate benefit from its share ownership.” Even if the majority shareholders demonstrate a legitimate business purpose for their actions, minority shareholders may still maintain a claim if they can establish that the same business purpose could have been achieved in an alternative manner less harmful to the minority. Importantly, minority shareholders in Massachusetts close corporations also owe fiduciary duties and may not intentionally engage in corporate conduct to their own personal advantage that is detrimental to the corporation and its other shareholders.
In Massachusetts, where a minority shareholder has a reasonable expectation of continued employment within a closely held company, the termination of such minority shareholder’s employment may be considered a “freeze-out” and, as such, be a breach of the majority shareholders’ fiduciary duties. In this regard, the remedy for a breach of a majority shareholder against the minority shareholder is, to the extent possible, to “restore to the minority shareholder those benefits which she reasonably expected, but has not received because of the fiduciary breach.” Massachusetts courts have the ability to award monetary damages, as well as impose a wide range of equitable remedies, such as reinstating corporate officers, forcing the distribution of dividends or even amending corporate operating agreements.
In contrast, a closely held Delaware company must be specifically incorporated as a “close corporation.” Even when incorporated as such, shareholders generally will not owe each other fiduciary duties unless the articles of incorporation or an agreement among the shareholders imposes such duties.  Consequently, the “protections afforded to minority stockholders in closely-held corporations under Delaware common law are no different than those in publicly-held corporations.” 
Majority shareholders in a closely held Delaware corporation, or shareholders who otherwise exert control over the close corporation, may act in a manner that unintentionally harms the interests of minority shareholders as long as such actions do not contravene the best interests of the corporation itself. The same holds true in the context of Delaware LLCs, except that managing members still owe fiduciary duties to the company and its passive members. However, if majority/controlling shareholders are found to have engaged in a transaction in which they would uniquely benefit, such shareholders must demonstrate that the transaction was entirely fair to the corporation, in terms of both price and dealing, and conducted with the utmost good faith. In Delaware, remedies for such breaches usually are limited to either monetary damages or equitable rescission of the contested transaction.
Contractually Limiting Fiduciary Duties
Contracts, which govern shareholder conduct, may supersede common law or statutory fiduciary duties. In Massachusetts, “[a]lthough a shareholder in a close corporation always owes a fiduciary duty to fellow shareholders, good faith compliance with the terms of an agreement entered into by the shareholders satisfies that fiduciary duty.” Consequently, claims for breach of fiduciary duty with respect to things such as employment or stock purchases may only arise when a prior agreement among the parties “does not entirely govern the shareholder’s actions.” To the extent an agreement does not directly address an issue, fiduciary duties apply.
In the LLC context, Massachusetts allows for greater flexibility regarding the limitation of fiduciary duties. Massachusetts Gen. Laws c. 156C, § 63, specifically provides that “[t]o the extent that, at law or in equity, a member or manager has duties, including fiduciary duties, and liabilities relating thereto to a limited liability company or to another member or manager . . . the member’s or manager’s duties and liabilities may be expanded or restricted by provisions in the operating agreement.” Additionally, “[t]he certificate of organization or a written operating agreement may eliminate or limit the personal liability of a member or manager for breach of any duty to the limited liability company or to another member or manager.” Contractual language limiting or modifying fiduciary duties “should be strictly, not expansively, construed.”
In JFF Cecilia LLC v. Weiner Ventures, for example, the plaintiff and defendant were members of a Massachusetts LLC that was primarily formed to develop a large real estate project. The plaintiff asserted claims based on the defendant’s failure to provide notice that it was publicly announcing the canceling of the development project.  The Superior Court recognized the enforceability of a clause in the LLC agreement, which stated that its members owed no fiduciary duties to the company or each other “except to the extent such duties are expressly set forth in this Agreement.” The court, however, found that the plaintiff still had a cause of action based on another section of the agreement, which imposed a duty upon its members to “consult with one another openly, fairly and in good faith,” to “work collaboratively” and to “use their reasonable efforts to keep one another informed of all known and material information with respect to” the company. Likewise, in Butler v. Moore, the relevant LLC agreement stated that its members were not “obligated to present an investment opportunity to the Company even if it is similar to or consistent with the business of the Company. . . [and they had the] right to take for their own account or recommend to others any such investment opportunity.” Nonetheless, the court refused to interpret such provisions as allowing its members to take, “for their own personal benefit,” those opportunities that already had been presented to the company. 
Similar to Massachusetts, in Delaware where a corporate “dispute arises from obligations that are expressly addressed by contract, that dispute will be treated as a breach of contract claim . . . [and] any fiduciary claims arising out of the same facts that underlie the contract obligations would be foreclosed as superfluous.” Likewise, Delaware statutorily allows provisions in LLC agreements in which a member or director’s fiduciary duties are “expanded or restricted or eliminated.” For example, in Marubeni Spar One, LLC v. Williams Field Servs. – Gulf Coast Co., L.P., the Chancery Court dismissed a claim for breach of fiduciary duty because the LLC agreement stated that the “Operating Member shall have no liability under this Agreement or otherwise to the Company or any Member for any actions taken in its capacity as Operating Member or for any actions it fails to take unless it breaches its obligations under this Agreement as a result of its gross negligence, fraud or willful misconduct.”
Although parties to a Delaware LLC agreement are not allowed to waive “the implied contractual covenant of good faith and fair dealing,” even this limitation is narrowly applied. As the Chancery Court explained, when an LLC “agreement eliminates fiduciary duties as part of a detailed contractual governance scheme, Delaware courts should be all the more hesitant to resort to the implied covenant. . . . “[r]especting the elimination of fiduciary duties requires that courts not bend an alternative and less powerful tool into a fiduciary substitute.”
Both Massachusetts and Delaware allow closely held corporations and LLCs to indemnify their directors and managers for any defense costs, settlements or judgments, which might arise from an alleged breach of their fiduciary duties. Pursuant to Mass. Gen. Laws c. 156D, § 8.51, a corporation may indemnify a director against any liability as long as the director: (1) has acted in “good faith;” (2) “reasonably believed that his conduct was in the best interests of the corporation or that his conduct was at least not opposed to the best interests of the corporation;” and (3) “had no reasonable cause to believe [the ] conduct was unlawful.” Massachusetts law also mandates that a corporation indemnify a director for their defenses costs if such director “was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he was a party.”
In the context of LLCs, Massachusetts law provides even wider latitude in determining the scope of indemnification. Indeed, the burden of denying indemnification may be placed on the company. LLCs can indemnify their members and managers “against any and all claims and demands whatsoever,” without having to establish that the member actually acted in good faith or with any particular intention or knowledge. An LLC may not provide any form of indemnification if the member or manager is specifically found in the course of a proceeding “not to have acted in good faith in the reasonable belief that his action was in the best interest of the limited liability company.”
In Delaware, the circumstance under which a corporation may indemnify a director is similar to Massachusetts in that the person must have acted in good faith with the reasonable belief that he, she or they were acting in the best interest of the corporation, and with no reason to believe his, her or their conduct was unlawful. Delaware corporations are required to provide indemnity for defense costs incurred by qualified individuals who succeed on the merits of their case. Delaware provides additional statutory guidance to determine when a person qualifies for indemnification. In this regard, the termination of an action by judgment, order or settlement (except where such judgment is based on a guilty plea) “shall not, of itself, create a presumption that the person did not act in” a manner entitling him, her or them to indemnification. A company cannot provide any indemnification if a person has “been adjudged to be liable to the corporation unless and only to the extent that the” relevant court makes a separate determination that despite such judgment the person is still entitled to indemnification.
In Delaware, “[n]o criteria are established by statute to govern the indemnification that limited liability companies may offer.” Pursuant to 6 Del. C. § 18-108, “a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.” The statute “defers completely to the contracting parties to create and delimit rights and obligations with respect to indemnification and advancement,” and does not in itself create any right or limits to indemnification.
In the context of closely held corporations, Massachusetts and Delaware take somewhat divergent approaches to the imposition and waiver of fiduciary duties among shareholders. Shareholders in closely held Massachusetts companies owe each other heightened fiduciary duties, and such duties can only be eliminated by contractual agreements that specifically address the duties or situations under which such duties may arise. Consequently, founders of, or investors in, closely held companies who seek heightened protections against the potential misconduct of their fellow shareholders, may favor Massachusetts incorporation. In contrast, shareholders in closely held Delaware companies generally do not owe each other fiduciary duties, and Delaware takes a more expansive approach with respect to allowing the elimination of fiduciary duties that could be imposed upon such shareholders. Accordingly, parties whose priority is to avoid potential liability, or the threat of such liability, from their fellow shareholders, may prefer Delaware incorporation.
In either state, potential shareholders should carefully review any contractual arrangements among the shareholders, including by-laws, purchase agreements and employment contracts. Such contracts may supersede, modify or eliminate what would otherwise be the parties’ default fiduciary duties. Awareness of these key distinctions between Massachusetts and Delaware corporate law is essential to making informed decisions about incorporation, investment and litigation.
 Harrison v. NetCentric Corp., 433 Mass. 465, 471 (2001). The majority of states adhere to the internal affairs doctrine. Notably, California and New York have particular statutory exceptions to the doctrine, which require consideration of whether the company has substantial contacts with the forum state. See Cal. Corp. Code § 2115; N.Y. Bus. Corp. L. §§ 1317–20.
 Donahue v. Rodd Electrotype Co. of New England, 367 Mass. 578, 586 (1975) (holding that the categorization of company as a “close corporation” is a factual inquiry); Allison v. Eriksson, 479 Mass. 626, 636 (2018) (in determining whether an LLC is closely held company, a court also examines the manner “in which a particular LLC is structured”).
 Id. at 593 (1975); Butler v. Moore, No. CIV. 10-10207-FDS, 2015 WL 1409676, at *61 (D. Mass. Mar. 26, 2015) (“As a matter of logic and fairness, there is no reason why the fiduciary duties of members of a closely held LLC should be materially different from those of shareholders of a closely held corporation.”); Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 408 (1995) (“They may not act out of avarice, expediency, or self-interest in derogation of their duty of loyalty to the other stockholders and to the corporation.”).
 Donahue, 367 Mass. at 598.
 Wilkes v. Springside Nursing Home, Inc., 370 Mass. 842, 851-52 (1976).
 Donahue, 367 Mass. at 593; Zimmerman v. Bogoff, 402 Mass. 650, 658 (1988)
 Selmark Assocs., Inc. v. Ehrlich, 467 Mass. 525, 536 (2014) (“Freeze-outs can occur when a minority shareholder is deprived of employment.”); Pointer v. Castellani, 455 Mass. 537, 551 (2009).
 Brodie v. Jordan, 447 Mass. 866, 870–71 (2006) (internal quotations omitted)
 Allison v. Eriksson, 479 Mass. at 638.
 Pursuant to Del. Code Ann. tit. 8, § 342, a Delaware company may incorporate as a close corporation. Such corporate form places restrictions on the number of stockholders and types of stock transfers, as well as prohibits any “public offering” of the company’s stock. However, the statute does not impose any additional fiduciary duties.
 Blaustein v. Lord Baltimore Capital Corp., No. CIV.A. 6685-VCN, 2013 WL 1810956, at *14 (Del. Ch. Apr. 30, 2013), aff’d, 84 A.3d 954 (Del. 2014) (explicitly contrasting its view with the approach of Massachusetts courts).
 Id. (citing Gilbert v. El Paso Co., 1988 WL 124325 (Del. Ch. Nov. 21, 1988))
 Feeley v. NHAOCG, LLC, 62 A.3d 649, 662 (Del. Ch. 2012) (“Managers and managing members owe default fiduciary duties; passive members do not.”)
 Nixon v. Blackwell, 626 A.2d 1366, 1376 (Del. 1993)
 Basho Techs. Holdco B, LLC v. Georgetown Basho Inv’rs, LLC, No. CV 11802-VCL, 2018 WL 3326693, at *49 (Del. Ch. July 6, 2018), aff’d sub nom. Davenport v. Basho Techs. Holdco B, LLC, 221 A.3d 100 (Del. 2019).
 Merriam v. Demoulas Super Markets, Inc., 464 Mass. 721, 727 (2013).
 Selmark Assocs., Inc., 467 Mass. at 539 (“[T]o supplant the otherwise applicable fiduciary duties of parties in a close corporation, the terms of a contract must clearly and expressly indicate a departure from those obligations.”).
 Mass. Gen. Laws Ann. ch. 156C, § 63.
 Mass. Gen. Laws Ann. ch. 156C, § 8.
 Butler v. Moore, No. CIV. 10-10207-FDS, 2015 WL 1409676, at *73 (D. Mass. Mar. 26, 2015); Selmark Assocs., 467 Mass. at 539 (2014) (“[T]o supplant the otherwise applicable fiduciary duties of parties in a close corporation, the terms of a contract must clearly and expressly indicate a departure from those obligations.”).
 JFF Cecilia LLC v. Weiner Ventures, LLC, No. 1984CV03317-BLS2, 2020 WL 4464584, at *11 (Mass. Super. July 30, 2020)
 Butler, 2015 WL 1409676, at *73.
 Id. at *74.
 Nemec v. Shrader, 991 A.2d 1120, 1129 (Del. 2010)
 6 Del. C. § 18-1101
 Marubeni Spar One, LLC, 2020 WL 64761 at *10; see In re Sols. Liquidation LLC, 608 B.R. 384, 407 (Bankr. D. Del. 2019) (finding that plaintiffs’ claims for the defendants’ alleged breach duty of loyalty and good faith were precluded by the LLC agreement, which eliminated such duties).
30] 6 Del. C. § 18-1101.
 Lonergan v. EPE Holdings, LLC, 5 A.3d 1008, 1018 (Del. Ch. 2010).
 Mass. Gen. Laws Ann. ch. 156D, § 8.51
 Mass. Gen. Laws Ann. ch. 156D, § 8.52.
 Mass. Gen. Laws Ann. ch. 156C, § 8
 Del. Code Ann. tit. 8, § 145.
Branin v. Stein Roe Inv. Counsel, LLC, No. CIV. A. 8481-VCN, 2014 WL 2961084, at *4 (Del. Ch. June 30, 2014).
 6 Del. C. § 18-108.
 Majkowski v. Am. Imaging Mgmt. Servs., LLC, 913 A.2d 572, 591 (Del. Ch. 2006).
Nicholas Nesgos is a Partner in the Complex Litigation Group at Arent Fox. He handles a wide variety of business disputes including disputes among shareholders in closely held companies.
Benjamin Greene is an Associate in the Complex Litigation Group at Arent Fox LLP. Benjamin represents a range of individual and corporate clients in complex commercial, employment and real estate litigation.
by Hon. John D. Casey
Voice of the Judiciary
I have always considered it an honor to be a part of the Probate and Family Court, first as a practicing attorney, and then as a judge. Now as Chief Justice, I more fully realize and appreciate the special nature of this Court and its judges and staff. I have met with people from every division to discuss my vision for the Court, and, in the process, have learned about their hopes for and commitment to the Court. On a daily basis, the judges and staff rise to the challenges of working in a court that interacts with people during some of the most difficult times in a person’s life.
The Probate and Family Court is different than the other Trial Court departments. Domestic relations litigation and probate litigation are unique in that each case involves a family situation or dynamic and has the potential to span years. In most cases, the parties must continue to interact with each other during and after difficult litigation. Because of this, litigants require compassion and must be treated with dignity and sensitivity. Many need to be educated on court processes because they do not have attorneys to explain what they will encounter and what is expected of them.
The mission of the Probate and Family Court is to “deliver timely justice to the public by providing equal access to a fair, equitable and efficient forum to resolve family and probate legal matters and to assist and protect all individuals, families and children in an impartial and respectful manner.” Since the economic downturn of 2008-2009, the ability of the Court to accomplish this mission has been severely strained. In the ensuing years, the Court relied on judges and staff to go above and beyond, and so many did. In addition, the bar volunteered to help in various ways, such as the Lawyer of the Day program, bar association conciliation programs, and Attorneys Representing Children (ARC) programs, to name a few. The challenges for the Probate and Family Court were noted by Chief Justice Ralph Gants in his State of the Judiciary address in October 2017 when he stated, “The burdens we place on our Probate and Family Court judges are simply not sustainable; we need to reimagine how we do justice in our Probate and Family Court.” To that end, different groups worked toward creative solutions for case management and staffing, while Chief Justice Gants and Chief Justice of the Trial Court Paula Carey advocated for additional funding for the Probate and Family Court at the State House. In the fiscal year 2019 budget, the Court received additional funds to address the specific needs of the Court – the need to hire sessions clerks and legal research and writing staff, the need for case management triage, and the need for alternative dispute resolution resources. I am proud to report that as a result of these additional funds, the Probate and Family Court has taken steps to start the reimagination of the Court, as Chief Justice Gants envisioned.
As part of this process, the Court set a goal of having one sessions clerk for each judge, so that judicial case managers and assistant judicial case managers could then spend their time outside of the courtroom working on case management. With the additional funds, the Court met that goal, hiring sessions clerks throughout the Commonwealth. In addition, three law clerks and two research attorneys have been hired. The Court now has eleven law clerk positions and seven research attorney positions dedicated to assisting the judges with their legal research and writing.
With regard to case management, I plan to solidify and build on ideas that have been discussed for many years. First, I want to emphasize to all staff, judges, and attorneys that every case is not the same, and should not be treated the same. By engaging in the early screening of cases, staff will put each case on its own path, taking into consideration various issues, including whether the case is uncontested or contested, straightforward or complex, whether the parties are self-represented or have counsel, and whether the case is ripe for alternative dispute resolution such as conciliation, mediation, or dispute intervention. Second, litigants will be educated on court processes and referred to services like alternative dispute resolution. This model has proven successful in the Middlesex Division and Essex Division on so-called “block days” with cases that involve child support with the Department of Revenue and also parenting issues. Litigants are referred to on-site mediators who assist the parties in resolving both child support and parenting issues at the same time, and with only one court appearance. We are not the first or only Trial Court department to use differentiated case management. We are, however, the Trial Court department that faces the challenge of implementing a new case management process with a population that is overwhelmingly unrepresented by counsel and that has recurring issues. Training is required to successfully implement these changes to case management. We have begun this process by conducting trainings for sessions clerks and assistant judicial case managers. We will continue to train all members of the Probate and Family Court so that we can rise to the challenges we face and meet our mission.
As I start my second year as Chief Justice, I am aware that nothing we do to improve the Probate and Family Court is done without the help of many different people and organizations – legislators, attorneys, bar associations, staff, judges, Chief Justice Gants, Chief Justice Carey, Court Administrator Jon Williams, and Deputy Court Administrator Linda Medonis. To all of you, I say thank you. Thank you for sharing your ideas about how the Probate and Family Court can be better. Thank you for your patience, as we all know that successful change takes time. But most of all, thank you for supporting me and the staff and judges of the Probate and Family Court as we make changes to enhance everyone’s experience with the Court.
The Honorable John D. Casey was appointed to the Probate and Family Court in 2006 and became the Chief Justice in July 2018. He previously served as the First Justice of the Norfolk Division of the Probate and Family Court. Chief Justice Casey graduated from Bates College and Suffolk University School of Law.
by Pratt Wiley
The Automatic Voter Registration Act (“AVR Act”), St. 2018, c. 205, signed into law in 2018 by Governor Baker, promises to expand the number of enrolled voters able to participate in our democracy by removing some of the administrative burdens of registration. Effective January 1, 2020, AVR will replace the current “opt-in” voter registration system with an “opt-out” system through which the Registry of Motor Vehicles (“RMV”) and MassHealth will identify and add eligible citizens residing in Massachusetts to the voter rolls. Individuals will automatically be registered to vote when they apply for or renew their: (1) driver’s license, (2) state-sponsored health insurance, (3) Medicaid benefits, or (4) complete another qualifying transaction at a future-designated AVR agency. The AVR system will use citizenship information, already collected by AVR agencies to enroll voters. The AVR Act directs the Secretary of State to promulgate implementing regulations by July 31, 2019.
AVR expands on the landmark National Voter Registration Act of 1993 (popularly known as the “Motor Voter Act.”). The Motor Voter Act eased the voter registration and maintenance process by requiring states to provide citizens with the opportunity to register to vote when applying for a driver’s license or otherwise engaging with a state agency that provides public assistance. Agencies that already participate in the Motor Voter Registration will continue to do so even if they are not designated as AVR agencies.
How It Will Work
Individuals transacting business at AVR agencies will be asked to provide sworn or verified information of their (a) legal name, (b) age, (c) residence, (d) citizenship, and (e) an electronic signature. AVR agencies must inform individuals of voter eligibility requirements and specify that non-citizens are ineligible and must decline to register to vote. The AVR Act requires AVR agencies to inform applicants that, unless they opt-out, their transaction at the agency will operate as a registration and attestation of their eligibility to vote. Eligible residents who do not decline will automatically be registered to vote as of the date of the qualifying agency transaction. The AVR Act does not change the requirement that voters be registered at least 21 days prior to an election.
AVR agencies will electronically transmit the collected personal information and signatures to the Secretary of State, unless an address is designated as confidential pursuant to G.L. c. 9A, § 8, or any collected information is not internally consistent or otherwise reliable. G.L. c. 51, § 42G ½(e), as amended by the AVR Act. The Secretary in turn will transmit the received data to the board of registrars or election commission in the registrant’s home city or town. Id.
Individuals automatically registered by an AVR agency will have a second opportunity to decline registration (or to select a party affiliation) by responding within 21 days to the notification of registration mailed by their local voter registrars. Voters who do not respond within the 21 days will be deemed registered as of the date they completed their eligible transaction with the designated AVR agency. Additionally, to reduce inaccurate registrations, local registrars will use the Electronic Registration Information Center to notify and confirm registrars new registration addresses.
Protections Afforded by the AVR Act
The Secretary of State is directed by the AVR Act to promulgate regulations to protect the confidentiality of addresses and the reliability of citizenship information.
- Address Confidentiality
Victims of domestic violence, sexual assault, or stalking in particular are concerned that their name and address information will not remain confidential when provided to a government agency. Recognizing that public policy is not served if people refrain from registering to vote or, more critically, obtaining necessary driver licenses or health services, out of fear for their safety, states that have implemented AVR have taken great care to assure the public that AVR will not increase the risk that their contact information will be publicly shared.
In Massachusetts, current election regulations prohibit registrars and election commissioners from publishing on the voter rolls, the name and residence of voters who are protected by the Address Confidentiality Program (“ACP”) administered by the Secretary of State, protected by a court order, residents in protective shelters, or for whom a chief of police has submitted an affidavit attesting that the voter is entitled to have certain information withheld from the public under G.L. c. 265, § 24C. Under the ACP, domestic violence victims who have relocated are also provided with a substitute address to use in transactions with the RMV and other state entities. As inserted by the AVR Act, G.L. c. 51, § 65(e) requires the Secretary of State to adopt regulations addressing confidentiality program participants under the ACP who interact with the RMV, MassHealth, and other AVR agencies.
- Citizenship Questions
A common concern regarding AVR and other voter registration modernization is that ineligible residents will be unintentionally registered to vote. Massachusetts, like every other state, allows documented noncitizens to obtain driver’s licenses with proof of lawful residence. California, unlike Massachusetts, allows undocumented aliens to obtain a special driver’s license and implemented AVR in 2018. While California did experience some initial technical difficulties after implementing AVR, state officials reported that “no people in the country illegally — who are eligible to get a special driver’s license in California — were mistakenly registered to vote,” and the Brenner Center for Justice did not report any incidents of non-citizens voting in California.
G.L. c. 51, § 42G ½ (a)(1), as inserted by the AVR Act, allows only state agencies that collect “reliable citizenship information” to participate in the AVR program. Agencies are deemed to collect reliable citizenship information if they “(i) request, in a clear, understandable and consistently stated manner, that customers affirm their citizenship status; and, (ii) collect a signed affirmation of citizenship status or documentary proof of citizenship status such that records of citizens are segregable from non-citizens.” In Massachusetts, citizenship and immigration status is also verified when determining eligibility for Medicaid benefits and state-subsidized healthcare insurance. Voters registered under the AVR will not be liable for a false claim to citizenship unless they affirmatively assert such eligible citizenship after being notified that their transaction with the agency serves as an attestation of eligibility unless they decline to register and that noncitizens are not eligible to vote.
Impact of AVR
With the AVR Act, Massachusetts joins California, Georgia, Oregon, West Virginia, and eleven other states and the District of Columbia to enact AVR. The AVR policy represents a continued progression in Massachusetts towards the “modernization of the registration process through continued expansion of online voter registration and expanded state collaboration in improving the accuracy of voter lists.” According to the Brennan Center, which has published a comprehensive report measuring the impact of AVR across the nation, since first being adopted by Oregon in 2014, “AVR markedly increases the number of voters being registered — increases in the number of registrants ranging from 9 to 94 percent. These registration increases are found in big and small states, as well as states with different partisan makeups.” For example, Oregon registered more than 200,000 citizens in the first six months following implementation, a rate over 16 times greater than registered by the DMV under the previous system. Rhode Island and Connecticut, have implemented variations of AVR, and Rhode Island’s voter registration has increased 47% since its implementation. In California, more than 1.4 million voter registration files were transmitted from the DMV to state election officials in the first four months of implementation. In fact, an estimated 27 million eligible persons would be added to voter rolls across the country if every state adopted automatic voter registration.
President Obama reminded us that we cure the ills in our democracy with more democracy. Automatic voter registration promises to do that by removing outdated and unnecessary barriers to voter engagement. As with all reforms, we must ensure AVR’s implementation adheres to the spirit and intent of the law. But once fully implemented, thousands of our family members, friends, and neighbors in Massachusetts will finally be able to have their voices heard from town halls to the White House
Pratt Wiley is the President & CEO of the Partnership, Inc. He formerly served as the National Director of Voter Expansion for the Democratic National Committee, where he oversaw the Party’s voting rights and voter protection initiatives, from 2013 to 2017.
by David Lyons
In a unanimous decision last September, the Supreme Judicial Court (“SJC”) upheld the Commonwealth’s latest climate change regulations to reduce greenhouse gas emissions from electric generators, rejecting those generators’ arguments that the regulations violate the Massachusetts Global Warming Solutions Act (the “GWSA”). New England Power Generators Ass’n, Inc. v. Dep’t of Envtl. Prot. (“NEPGA”), 480 Mass. 398 (2018). With the Legislature and the Governor continuing to focus on this issue, the SJC likely will be called upon again to decide other climate change cases.
A Legacy of Policy Innovation
Massachusetts is one of a handful of states that have pressed the envelope in adopting climate change policy, from spearheading Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007) (compelling EPA to begin the process to regulate carbon dioxide as a pollutant under the federal Clean Air Act) to coordinating the formation of the country’s first multistate emissions trading market, the Regional Greenhouse Gas Initiative (“RGGI”). As the SJC noted, ever since the Legislature adopted the GWSA in 2008, Massachusetts has been “a national, and even international, leader in the efforts to reduce . . . climate change.” NEPGA, 480 Mass. at 399. Among other provisions, the GWSA mandated a reduction in greenhouse gas emissions by 80% below the 1990 level by 2050. M.G.L. c. 21N, § 3(b).
Industry has strenuously opposed these policies, especially the electric generators who have shouldered the most immediate compliance burdens. Regulating greenhouse gases at the state level both raises the costs for power plants and their customers, they argue, and fails to ameliorate the environmental problem, as emissions simply shift to neighboring, unregulated jurisdictions.
Kain v. Department of Environmental Protection, 474 Mass. 278 (2016), previously discussed in these pages, spurred more DEP action, including the regulations at issue in NEPGA. Kain addressed M.G.L. c. 21N, § 3(d), which requires DEP to develop aggregate limits for different sources of emitters. The SJC decided in Kain that the agency’s implementation of the RGGI program was insufficient to comply with the statutory mandate. Among other things, the Court ordered DEP to promulgate “regulations that address multiple sources or categories of sources of greenhouse gas emissions, impose a limit on emissions . . ., limit the aggregate emissions released from each group of regulated sources . . ., [and] set [declining] emission limits for each year. . . .” Id. at 300.
Kain thus laid the foundation for a series of climate-change policies. Shortly thereafter, Governor Baker issued Executive Order 569, initiating a rulemaking process that culminated in the two key regulations contested in NEPGA. The “Cap Regulation” was the focus of the plaintiffs’ challenge and imposes annual, declining limits for greenhouse gas emissions on in-state electric generators. 310 Code Mass. Regs. § 7.74. The Clean Energy Standard, 310 Code Mass. Regs. § 7.75, requires utilities to procure more of their power from non-emitting sources. Id.
The plaintiffs filed suit challenging the rulemaking on September 11, 2017. Befitting the policy stakes, a single justice of the SJC reserved and reported the case to the full Court before any substantive motions or briefing at the Superior Court. See M.G.L. c. 211, § 4A (empowering the SJC to transfer cases from the lower courts).
The SJC Upholds Sector-by-Sector Emissions Limits
The electric generators mounted a three-pronged attack on the regulations. First, they alleged that DEP and the Department of Energy Resources lacked the authority to issue the Cap Regulation. They argued that the GWSA provision directly regulating electric generators, G.L. c. 21N, § 3(c), forecloses other regulations under § 3(d), which generally authorizes sector-by-sector emission limits. 480 Mass. at 399. Second, they argued that the Cap Regulation will increase greenhouse gas emissions. Id. Finally, they claimed that a sunset clause in the statute barred § 3(d) regulations from being effective beyond 2020. Id.at 399-400. The SJC was unpersuaded.
First, the Court concluded that §§ 3(c) and 3(d) complement, rather than conflict with, each other. The electric sector is just one of several categories of emission sources within the scope of § 3(d). Id. at 404. The Court relied on conventional tools of statutory interpretation and an assessment of the Legislature’s overall policy objectives, noting that although § 3(c) aims specifically at electric generators, nothing in either § 3(c) or § 3(d) precludes electric sector regulations under § 3(d). Id. at 406-07. The SJC also rejected the plaintiffs’ argument that DEP’s interpretation was unreasonable. Because electric generators account for roughly 20% of the state’s greenhouse gas emissions, the SJC reasoned that it would be anomalous to exclude electric generators from the declining sector-by-sector limits under § 3(d). Id. at 405.
Second, the SJC rejected the plaintiffs’ argument that the Cap Regulation is arbitrary and capricious, holding that the generators had not met their burden to show that the regulation lacked “any conceivable grounds upon which [it could] be upheld.” Id. at 410. The plaintiffs argued that if high-carbon, in-state electricity is replaced by high-carbon, out-of-state electricity, consumers will face higher costs with no environmental gains. The SJC characterized that concern as speculative and found “multiple conceivable bases to support the rule” in the administrative record. Id. at 408. Applied together, the SJC concluded that the Cap Regulation and the Clean Energy Standard will encourage the development of clean generation sources in Massachusetts and neighboring states. Id. at 409-10.
Last, the SJC disagreed with the plaintiffs’ interpretation of a provision in the GWSA stating that § 3(d) regulations “shall expire on December 31, 2020.” Rather than invalidating any emission limits effective beyond this date, the SJC concluded that the timing provision only requires DEP to issue new regulations by December 31, 2020, and likened the date to an “implementation deadline, not [a] termination” date. Id. at 411.
Although the state has made significant strides to reduce emissions—cutting them by more than 20% between 1990 and 2016—the formidable economic and technical obstacles that stand in the way of the GWSA-mandated 80% reduction by 2050 mean that NEPGA will not be the last climate change case to reach the courts.
Indeed, with the wave of policymaking launched by the GWSA and reinvigorated by Kain continuing to build, climate change may reach the SJC again sooner rather than later. On August 9, 2018, Governor Baker signed An Act to Advance Clean Energy, 2018 Mass. Acts c. 227. Though less aggressive than a Senate version promoted by environmental advocates, the Act made several important changes, including raising the targets for the state’s Renewable Portfolio Standard (which requires utilities to procure energy from renewable sources). The Act also directs the Department of Energy Resources to implement a Clean Peak Standard to promote clean energy sources to meet peak-period demands, which historically have been met by burning dirtier fuel sources. Governor Baker also signed An Act Promoting Climate Change Adaptation, Environmental and Natural Resource Protection and Investment in Recreational Assets and Opportunity, 2018 Mass. Acts c. 209, which authorizes $2.4 billion in bonds for environmental projects and codifies initiatives begun by E.O. 569, including the statewide Hazard Mitigation and Climate Adaption Plan. Most recently, the state expanded its regional leadership role, joining with nine other states and the District of Columbia to launch a regional strategy, analogous to RGGI, to reduce emissions from transportation. With the reach of climate change regulations expanding rapidly, the SJC surely will address climate change again soon.
David Lyons is an associate at Anderson & Kreiger LLP. He advises public- and private-sector clients in permitting and litigation matters, with a focus on environmental, energy, and municipal law.
by Bethany Stevens
Massachusetts law has long provided two tools to suspend a person’s lawful access to firearms: a firearms licensing authority could suspend a person’s license to carry or possess a firearm if it found the person was unsuitable, or a court could — indeed, is required to — suspend a firearms license and order the surrender of the person’s firearms after finding a substantial likelihood of an immediate danger of abuse of a household or family member pursuant to G.L. c. 209A. Massachusetts has now added a third tool, modeled after “red flag” laws in other states, to allow seizure of the firearms of persons who present a risk to themselves or others. As of August 17, 2018, the District Court and Boston Municipal Court may now issue an “extreme risk protection order” to compel a person to immediately surrender firearms and ammunition on the petition of a household member, family member or licensing authority without the need for a finding of abuse. See G.L. c. 140, §§ 131R-131Z.
What is an Extreme Risk Protection Order?
An extreme risk protection order (sometimes referred to as an “ERPO”) immediately suspends a person’s license to carry or possess a firearm and directs the person to immediately surrender their firearms licenses, guns (including stun guns), and ammunition to the licensing authority in the municipality where the person resides. An ERPO may issue only upon a finding that the person “poses a risk of bodily injury to self or others by being in possession of a [firearms license] or having in his control, ownership or possession [guns or ammunition].” G.L. c. 140, § 131T(a). While the order is in effect, the respondent is disqualified from obtaining a firearms license and is prohibited from possessing a firearms license, gun or ammunition. A violation of the order is a misdemeanor criminal offense.
Who Can Seek an Order?
The new law allows a household or family member, defined as those phrases are used in G.L. c. 209A, to file a petition with the court upon “belie[f] that a person holding a license to carry firearms or a firearm identification card may pose a risk of causing bodily injury to self or others.” G.L. c. 140, § 131R. A petition may also be filed by the licensing authority where the respondent resides (defined as “the chief of police or the board or officer having control of the police in a city or town, or persons authorized by them,” G.L. c. 140, § 121). In some instances, the licensing authority where the respondent resides will not be the authority that actually issued the respondent’s firearms license(s) because a person could be licensed by the police department of the municipality in which the person works or because a person might move to a different municipality after licensing. G.L. c. 140, §§ 129B(1), 129B(11), and 131(d).
Individuals who are not family or household members may not petition a court for an ERPO, even though in appropriate instances they may seek a harassment protection order under G.L. c. 258E. Chapter 258E does not authorize a harassment prevention order to include an order to surrender firearms. J.C. v. J.H., 92 Mass. App. Ct. 224, 230 (2017). As a result, if an individual who is not a member of a license-holder’s family or household believes that a license-holder poses a risk to themselves or others, the individual should seek appropriate relief by reporting the information to an eligible ERPO petitioner.
Procedure to Issue an Order
The new law bears many procedural similarities to G.L. c. 209A. A petitioner who seeks an ERPO must file a petition signed under the pains and penalties of perjury. If on review the judge “finds reasonable cause to conclude that the respondent poses a risk of bodily injury to self or others” by possessing a firearms license, guns or ammunition, the judge may issue an emergency or temporary extreme risk protection order without first giving notice to the respondent. G.L. c. 140, § 131T(a). An emergency order issued during court hours is valid for only 10 days. Like an emergency order under c. 209A, an emergency ERPO issued after court hours by an on-call judge is valid only until the end of the next court day. If a petitioner seeks to have such an “after hours” emergency order extended beyond the next court day, the petitioner must appear during court hours for a hearing at the appropriate court with jurisdiction over the city or town where the respondent lives.
Because an ERPO suspends a person’s lawful access to guns and ammunition, an ERPO will not issue when the person has no license to suspend. Rather than issuing an ERPO, the court will provide the information to police to take whatever action is warranted when they learn information related to the illegal possession of firearms. If in these circumstances the petitioner is a household or family member concerned about their own safety, they should consider seeking a c. 209A order.
For an ERPO to be extended up to one year, the court must hold a hearing within ten days of the filing of the petition with notice to the respondent at least seven days prior to the hearing. The respondent can waive this notice period. If the respondent files an affidavit stating that guns are required in the performance of the respondent’s employment, the hearing must be held within two days of the petition being filed. At the hearing, the petitioner must establish by a preponderance of the evidence that the respondent poses a risk of bodily injury to self or others by possessing guns or ammunition. If the judge so finds, the judge must issue an order for up to one year. Either party may move to modify, suspend or terminate an active order. Appeals of ERPO proceedings may be taken to the Appeals Court just as c. 209A orders may be appealed.
Effect of an Order
Whenever a court issues an ERPO, the licensing authority and the criminal justice information service database (CJIS) must be notified. This triggers suspension of any Massachusetts firearms license and disqualifies the respondent from obtaining a new firearms license in Massachusetts. This is the same process that occurs when a c. 209A order issues: CJIS and licensing authorities are notified of c. 209A orders as such orders generally require immediate suspension of a firearms license and surrender of guns and ammunition. G.L. c. 209A, §§ 3B and 3C.
The new statute allowing courts to issue extreme risk protection orders does not replace a licensing authority’s ability to suspend a firearms license. Therefore, under G.L. c. 140, § 129B (firearm identification cards) or § 131 (licenses to carry), the chief of police who issued the license or their designee may still suspend a person’s license and require surrender of guns and ammunition upon finding the licensee “unsuitable.” This determination by the licensing authority results in immediate suspension of the firearms license without the need for a court ruling.
Restoration of Firearms License
While issuing an extreme risk protection order is a process separate from the licensing authority’s determination of suitability, the two processes converge upon an ERPO’s expiration or termination. After an ERPO is issued, a firearms license, guns, and ammunition may be returned to the respondent only after the licensing authority where the respondent resides determines that the respondent is suitable. A determination of unsuitability must be based either on reliable information that the person “has exhibited or engaged in behavior to suggest the [person] could potentially create a risk to public safety” or on “existing factors that suggest that the [person] could potentially create a risk to public safety.” G.L. c. 140, § 129B(1½)(d) . If denied reinstatement, a respondent presumably could seek judicial review under existing license appeal procedures, although the new statute does not explicitly provide for such judicial review.
Reports on the New Law’s Use
By December 31, 2018, we will learn more about the utility of this new law. The court must provide an annual statistical report on its use, including the number of petitions filed, petitions granted, and petitions that led to surrender of guns, as well as demographic information about respondents and petitioners. In the meantime, information about extreme risk protection orders and the forms a petitioner is required to file can be found on the court’s website.
Bethany Stevens is the Director of Legal Policy and Deputy General Counsel to the Administrative Office of the District Court, and is a member of the BBA’s Criminal Law Section Steering Committee. Previously, she served as the Deputy Chief of the Middlesex District Attorney’s Appeals Bureau where she litigated closed courtroom claims at the trial level as well as at the Appeals Court and Supreme Judicial Court.