The 2017 Massachusetts Child Support Guidelines

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by Holly A. Hinte

Heads Up

It is the public policy of the Commonwealth that dependent children be maintained, as completely as possible, from the resources of their parents. The Court’s authority to award child support is defined by statute and applies in a variety of cases including divorce, paternity, and abuse prevention cases to name a few. Broadly speaking, child support is an amount paid from one party to another for the support of the dependent child. Unlike alimony orders, such amount is neither taxable to the payee nor deductible by the payor.

In order to receive certain federal funding, each state must establish guidelines for child support and review them once every four years to ensure that their application results in the determination of appropriate award amounts. 42 U.S. Code § 667; 45 CFR § 302.56. In Massachusetts, the Guidelines are promulgated by the Chief Justice of the Trial Court and used by the judges of the Probate and Family Court in determining the appropriate level of child support.

As required by said federal regulations, in March 2016, the Chief Justice of the Trial Court, Paula M. Carey, convened a Task Force, consisting of judges, practitioners, and economists, to review the 2013 Guidelines and the current economic climate. This review lasted over a year and included public forums, discussions, reports, and feedback from the public, the bench and the bar.

The new 2017 Guidelines were published and became effective on September 15, 2017. For the first time, the Task Force’s comments are included within the actual text of the Guidelines. There are also new forms and worksheets to be used by practitioners and the court. All of the new documents are available on the court website: www.mass.gov/courts/selfhelp/family/child-support-guidelines.html.

Compared to the 2013 Guidelines, the 2017 Guidelines contain edits made for clarification purposes, substantive changes, and in-depth instructions and commentary. Some of the notable changes are as follows:

Child Support for Children Between the Ages of 18 and 23

The 2017 Guidelines now apply in all cases in which child support is awarded, no matter the age of the child, which is a marked difference from the prior guidelines and prior federal regulations which only required application of the guidelines up to age 18.  This has always been a conflict, as under the Massachusetts statutory scheme, the Court has the discretion to award child support for a child over 18 to 21, if said child is domiciled with, and principally dependent upon, a parent, and the Court has the discretion to award child support for a child between the ages of 21 to 23 so long as the child is domiciled with, and principally dependent upon, a parent, and enrolled in an educational program (undergraduate only).

The 2017 Guidelines address this conflict by providing instructions for handling child support for children between the ages of 18 and 23, including providing factors to consider when determining whether or not to enter such an order. Additionally, in recognizing the unique factors present with children between the ages of 18 and 23, the 2017 Guidelines reduces the base amount of child support in this age-range by twenty-five percent (25%). Such presumptive order may be deviated from if appropriate.

Contribution to Post-secondary Educational Expenses

In addition to the concerns regarding child support for children between the ages of 18 and 23, there was also a lack of clarity and uniformity as it related to contributions to post-secondary educational expenses of a child. The prior guidelines did not address such contributions despite statutory authority giving the Court discretion to order a party to contribute to such expenses.

The Task Force recognized the concerns voiced by the public, the bench and the bar- namely, many parents cannot afford to pay college expenses from their income while also meeting other expense obligations, often being forced to incur substantial loan liability. As such, the 2017 Guidelines include a new section addressing such contributions.

In determining whether or not to order such contribution, the 2017 Guidelines provides a list of factors the Court must consider including cost, the child’s aptitudes, the child’s living situation, the available resources of the parent and the child, the availability of financial aid, and any other relevant factors.

If it is determined to order such contribution, the 2017 Guidelines cap such contribution at 50% of the undergraduate, in-state resident costs of the University of Massachusetts-Amherst (as set out in the “Published Annual College Costs Before Financial Aid” in the College Board’s Annual Survey of Colleges). While such cap is not an absolute limitation, any order requiring a parent to contribute more than 50% requires written findings that a parent has the ability to pay the higher amount.

The Task Force makes clear that this limitation is not meant to apply in situations where: (1) children are already enrolled in college (prior to September 15, 2017) or (2) parents are financially able to pay educational expenses using assets or other resources.

If the Court exercises its discretion and orders child support for a child over the age of 18 along with contribution to post-secondary educational expenses, the Court is to consider the combined amount of both orders and the impact of such on the obligor.

Attribution and Imputed Income

The 2017 Guidelines distinguish “imputation of income” and “attribution of income” in a more coherent and refined manner. Imputed income is undocumented or unreported income. Attributed income is a theoretical amount assigned to a parent after it is found that the parent is capable of working and is unemployed or underemployed. In addition to the clarification of the types of income, the 2017 Guidelines provide new factors the Court is to consider when determining whether or not to attribute income.

Holly A. Hinte is an associate at Lee & Rivers, LLP, a boutique domestic relations law firm in Boston and a member of the Boston Bar Association & Massachusetts Bar Association.


Massachusetts High Court Rules State Law Does Not Authorize Detention Based on ICE Detainers Alone

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by Tad Heuer and Daniel McFadden

Case Focus

On July 24, 2017, in Lunn v. Commonwealth, the Massachusetts Supreme Judicial Court ruled that state and local officials are not authorized to arrest immigrants based on civil immigration detainers issued by U.S. Immigration and Customs Enforcement (“ICE”).  As a result, public safety officials in Massachusetts generally cannot detain or hold a person in custody based solely on the existence of an ICE detainer.  It appears that the SJC is the first state highest appellate court to reach and decide this issue.

The Detainer Controversy

Although ICE officers frequently detain people accused of being “removable” (i.e., subject to deportation), ICE does not always make the initial arrest.  Rather, ICE often issues “detainers” to the state or local public safety officials who have certain immigrants in their custody.  A detainer is ICE’s “request” that, if an immigrant of interest to ICE is in the custody of local authorities for any reason, the authorities voluntarily delay that individual’s release by up to 48 hours to allow ICE to transfer him or her into immigration custody.  This is an efficient mechanism for ICE to seize immigrants who are being released from prison, who have been arrested, or who have simply been pulled over for a traffic stop.

Detainers have been controversial because they essentially ask state and local officials to hold people in custody absent a judicial warrant or probable cause.  Most violations of immigration law are not crimes, and most removal proceedings are purely civil matters handled by administrative courts within the Department of Justice.  Nor do detainers typically provide information establishing probable cause.  Critics of current ICE practice have contended that neither state law, nor the state or federal constitutions, permit a warrantless arrest in such circumstances.

Prior to Lunn, challenges to the legality of compliance with ICE detainers had met with some success.  In 2014, the Maryland Attorney General issued a memorandum concluding that “an ICE detainer, by itself, does not mandate or authorize the continued detention of someone beyond the time at which they would be released under State law.”  The Virginia Attorney General issued an official opinion reaching the same conclusion in 2015.  In Massachusetts, a Single Justice of the SJC ruled in May 2016 that law enforcement officials are “without authority to hold [a person], or otherwise order him held, on a civil [ICE] detainer.” Moscoso v. A Justice of the East Boston Div. of the Boston Mun. Court, No. SJ-2016-0168, slip op. at 1 (May 26, 2016). However, until Lunn, it appears that no state’s highest appellate court had squarely addressed the question.

The Lunn Decision

The Lunn case arose from the detention of Sreynoun Lunn, an immigrant ordered removed from the United States in 2008.  However, ICE was apparently unable to execute that order because Mr. Lunn’s country of origin declined to issue the necessary travel documents, and he was therefore released.

In 2016, Mr. Lunn was held by Massachusetts authorities on a larceny charge, which the state court dismissed for lack of prosecution.  Ordinarily, Mr. Lunn would have been free to go.  However, ICE had issued an immigration detainer requesting that Massachusetts authorities continue holding Mr. Lunn for up to two days beyond when he would otherwise have been released.  Consequently, even though all charges had been dismissed, court officers detained Mr. Lunn for several more hours, until ICE agents arrived and took him into federal custody.

Mr. Lunn promptly sought a ruling that state officials were wrong to hold him based solely on ICE’s civil immigration detainer.  A single justice of the SJC reserved and reported this question to the full Court.

In agreeing with Mr. Lunn, the SJC first explained that “the administrative proceedings brought by Federal immigration authorities to remove individuals from the country are civil proceedings, not criminal prosecutions.”  The Court further explained that ICE detainers are issued for the purpose of this “civil process of removal,” and are purely requests for voluntary state or local assistance.  In its briefing, the federal government even expressly conceded that state authorities are not obligated to enforce ICE detainers.

The Court then turned to the question of whether Massachusetts officials have statutory or common-law authority to arrest people solely because the officials received a voluntary request from the federal government to hold the person for a civil proceeding.  The Court found no such authority.  The Court also rejected the federal government’s argument that state law enforcement officers possess “inherent authority” to enforce detainers.  Accordingly, it is generally unlawful for Massachusetts state and local officials to arrest and detain a person based solely on an ICE detainer.

However, Lunn does not preclude executing an arrest for other independent reasons (for instance, if the person is subject to a state or federal warrant arising out of suspected criminal activity).  Nor does Lunn prevent officials from providing ICE with advance notice of a given detainee’s or inmate’s intended release date.

The Lunn decision could also carry implications beyond the immigration context, particularly its conclusion that a law enforcement officer has no arrest powers outside of those expressly granted by statute or common law.  As the Court stated, “[t]here is no history of ‘implicit’ or ‘inherent’ arrest authority having been recognized in Massachusetts that is greater than what is recognized by our common law and the enactments of our Legislature.”  Further, the Court indicated its discomfort with any expansion of common-law arrest powers, explaining that “[t]he better course is for us to defer to the Legislature to establish and carefully define” new arrest powers.  This language likely will be useful to future criminal defendants and civil rights plaintiffs who seek to challenge other forms of warrantless detention.

Notably, authorship of the Lunn decision was attributed as “By The Court,” rather than to any specific justice, and the reasons for the Court doing so remain unclear.  What is known is that this approach is rare, having last been employed over two decades ago. While typically employed in cases (like Lunn) involving regulation of the judicial branch or the practice of law, it is infrequent even then: in the vast majority of decisions in such cases, opinions are authored by specific and identified justices.

Open Questions

The Lunn decision leaves several open questions.  For example, the SJC did not reach the question whether Mr. Lunn’s arrest would, if nominally authorized by state statute, be permitted by the state and federal constitutions.  This is not strictly academic.  Governor Baker has drafted legislation that would authorize such detention in at least some circumstances.  Critics have expressed strong opposition to any such law on multiple constitutional grounds.

The SJC also did not reach the question of whether an arrest would be lawful if a particular detainer form provided sufficient information to establish probable cause that the individual had committed a federal crime.  Nor did the SJC address whether an arrest would be permissible if made by a state or local official acting pursuant to a state-federal partnership under 8 U.S.C. § 1357(g).  That statute permits ICE to specially deputize state and local officials to act with the authority of ICE officers.  In Massachusetts, ICE has executed such agreements with the Massachusetts Department of Corrections and the Sheriff’s Offices of Bristol and Plymouth counties.  These outstanding questions will have to await resolution in future cases.

Tad Heuer is a partner at Foley Hoag LLP practicing administrative law.  He is currently a member of the Board of the Boston Bar Journal.  Daniel McFadden is a litigation associate at Foley Hoag LLP, where his practice includes representation of both individuals and organizations on immigration law matters.


SJC Remakes Search-and-Seizure Law to Keep Pace with Modern Realities of Smartphone Technology and Race Relations

omeararangavizby Ruth O’Meara-Costello and David Rangaviz

Legal Analysis

In recent decisions, the Supreme Judicial Court (“SJC”) has cast an increasingly skeptical eye on law enforcement activities in two areas of perennial controversy:  the search and seizure of cell phones and electronic data, and police encounters with young black men.  The SJC’s review of search and seizure matters has been stringent, as the court has demanded a specific evidentiary basis for searches in both the digital and physical realms. These cases implement in practice the principles that absent reasonable suspicion, an individual may voluntarily terminate a police encounter; before obtaining a warrant, the police must have a particularized reason to believe that evidence will be found in a place to be searched (including a specific folder within an electronic device); and officers need individualized suspicion of a suspect’s involvement in a crime before stopping and seizing the individual. In a series of cases, the court has breathed new life into these oft-stated and staid legal rules, particularly in the context of digital searches.

The court has also explicitly addressed the role of race in interactions between the police and the minority residents of the communities they serve. In doing so, the court has recognized the reality in which many black targets of police investigations live. The SJC has forced the criminal justice system – and the overwhelmingly-white players within it – to imagine what it is to be African-American in an over-policed and underrepresented community.  By analyzing what probable cause means in the context of digital searches and relying on social science to understand interactions between police and African-American suspects, the court has brought an added degree of rigor in applying Fourth Amendment principles to the realities of modern American life.

Digital Searches

First, in Commonwealth v. Dorelas, 473 Mass. 496 (2016), the SJC reviewed whether a warrant to search an iPhone was supported by probable cause.  Police had reason to suspect the defendant was involved in a shooting, and that his iPhone might contain incriminating evidence because the victim had been receiving threatening calls and texts.  But the warrant did not authorize a search of just call and text history; it allowed officers to search all of the phone’s other contents, including photographs. Executing the warrant, officers found a photo of the defendant holding a gun and wearing clothing similar to that of the alleged shooter. The defendant sought to suppress the photograph, arguing that there was no probable cause to support the search of the photographs (as opposed to call or text history) and that the warrant did not identify the items to be seized or places to be searched with sufficient “particularity.”

The SJC rejected both arguments in a 4-3 decision, but announced a more demanding standard for searches of the digital contents of a smartphone.[i]  The majority noted that given the vast “volume, variety, and sensitivity” of information stored in or accessed through a smartphone, permitting a digital search to extend anywhere targeted information could be found is a “limitation without consequence” in the digital world, because “data possibly could be found anywhere within an electronic device.” In light of those “properties that render an iPhone distinct from the closed containers regularly seen in the physical world,” searches of such electronic data require “special care” and must satisfy a “more narrow and demanding standard” than physical searches. But the majority reasoned that the search into the phone’s stored photographs met that standard because threatening photos received or sent via text could have been stored separately from the texts themselves.

The dissent argued that the potential connection to a threat did not justify a search of the phone’s photographs.  It emphasized a forensic examiner’s testimony that extraction of call and text history would have retrieved photographs attached to messages, eliminating any need to search all photographs separately stored on the device.  The dissent also argued that the warrant failed to satisfy the Fourth Amendment’s “particularity” requirement because it authorized a general search of the entire iPhone.  Given the expansive capacity of today’s smartphones, the dissent likened this to “limiting a search to the entire city.”  The dissent thus fully rejected the traditional “container” analogy that generally permits a search of any “container” or file that is capable of containing the evidence sought.

Dorelas reflects a closely-divided court struggling over how to translate analog constitutional rules to modern digital reality. Both the majority and dissenting opinions appreciated the need for a heightened standard on cell phone searches, though they took different approaches when considering the obligation to limit the search’s intrusiveness.

A few months later, in Commonwealth v. Broom, 474 Mass. 486 (2016), the SJC provided further guidance on the kind of evidence needed to justify a cell phone search.  The defendant in Broom was charged with the first-degree murder and rape of his former neighbor. His statements to police put at issue his whereabouts the night before the murder.  A search of “cellular site location information” (CSLI) – location data associated with the defendant’s cell phone – undercut the defendant’s claims about that night.  A search of the contents of his cell phone call log and text messages yielded a crude text message from the defendant to his fiancé suggesting that he was sexually frustrated.  On appeal, the defendant challenged admission of both the CSLI and the text message.

The court concluded that probable cause did not exist to search the cell phone.[ii] The court emphasized the heightened Dorelas standard, and concluded that the affidavit in support of the search warrant failed to describe “particularized evidence” that the defendant’s phone would contain evidence relating to the crime. The court completely discounted the detective’s statement that, in his training and experience, cell phones “store vast amounts of electronic data” and thus “there is probable cause”, explaining that such a “general, conclusory statement adds nothing to the probable cause calculus.” While the court found the error in Broom to be harmless, its decision put lower courts on notice that they cannot authorize digital searches merely based on an officer’s training and experience without the kind of specific supporting information present in Dorelas.[iii]

In Commonwealth v. White, 475 Mass. 583 (2016), the court made explicit what it had implied in Broom: “Probable cause to search or seize a person’s cellular telephone may not be based solely on an officer’s opinion that the device is likely to contain evidence of the crime under investigation.”  The search warrant affidavit’s factual basis for the request to search the cell phone in White amounted to two things:  (a) there was evidence that the defendant had participated with others in a robbery-homicide, and (b) the officer’s “training and experience” suggested that cell phones generally contain incriminating evidence of communications in multi-defendant cases.  The court found this basis insufficient, emphasizing that the existence of probable cause to arrest does not necessarily provide probable cause to search a suspect’s cell phone; the latter requires particularized evidence that the phone was reasonably likely to contain evidence related to the crime.  Absent such particularized evidence, a suspect’s cell phone cannot be searched.

Police Encounters

The court has also recently taken on the challenge of applying Fourth Amendment rules to the reality of modern racial dynamics. In Commonwealth v. Warren, 475 Mass. 530 (2016), the unanimous court held that an African-American defendant’s flight from the police does not give rise to probable cause for a subsequent search. The SJC emphasized reasons other than consciousness of guilt that an African-American might flee a police encounter: “Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity.” Citing an ACLU of Massachusetts report about the disproportionate impact of police stops on African-Americans, the court held that flight “add[s] nothing to the reasonable suspicion calculus.”  (That study, examining the Boston Police Department’s “stop and frisk” activity, concluded that 63% of Boston police-civilian encounters from 2007 to 2010 targeted African-Americans, who are less than 25% of the city’s population. The Department itself acknowledged that “[t]he study did show some racial disparities that must be addressed.”)

The Warren opinion recognizes the importance of perspective in applying legal doctrine.  It attempts to defeat stereotypes that only guilty people flee police encounters, and reconciles the justice system with the reality that black men in Boston have an innocent and legitimate reason to flee the police.

The court’s analytical approach is also noteworthy. As the foregoing cases make clear, the court has not hesitated to change the law to keep pace with changes in technology.[iv] Similarly, the SJC’s opinion in Warren suggests its willingness to alter criminal practice and procedure based on emerging social science research. This forward-thinking perspective is unusual – appellate practitioners are trained to rely upon legal sources: statutes, legislative history, constitutional provisions, and precedent.  Indeed, the defense attorney litigating Warren never cited the report about racially-biased police stops in his brief to the Appeals Court and SJC – justices of the Appeals Court cited the study in dissent, and the SJC relied on it to effect a sweeping change in doctrine.[v]  The court’s recent receptiveness to this type of outside-the-record social science information is worth noting by appellate advocates.[vi]

Finally, in Commonwealth v. Meneus, 476 Mass. 231 (2017), the court held that a search of a group of young black men who happened to be located near a crime scene was unconstitutional.  After gunshots struck a woman’s car, she described having seen a group of young black men run away. The SJC held that such a vague description – “a group of young black males” – falls far short of justifying a search of all people fitting that description. In the court’s words: “[T]he mere presence of a nondescript group of young black males standing near the scene of a reported shooting did not, standing alone, sufficiently narrow the range of possible suspects to include this group of individuals.”[vii] As in Warren, the court refused to rely on the defendant’s flight to find reasonable suspicion. Ultimately, despite the seriousness of the crime under investigation, the court’s decision in Meneus was a rebuke to the conduct of the police. In its emphasis on the need for specific evidence to support suspicion and rejection of the importance of proximity to a crime or presence in a high-crime neighborhood, Meneus complements Warren and emphasizes the court’s determination to stringently uphold constitutional protections for minority groups who may be unfairly targeted by law enforcement.

The complex legal issues posed by digital searches, and the reality of racial profiling, will undoubtedly continue to confront the criminal justice system in Massachusetts and elsewhere.  With a quartet of new members, and an additional seat to be filled in the near future, it remains to be seen how the SJC’s search and seizure jurisprudence will grapple with these questions going forward.

[i] The Majority opinion was written by Justice Cordy, and joined by Chief Justice Gants and Justices Spina and Botsford; Justice Lenk wrote the dissent, joined by Justices Duffly and Hines. The defendant was represented by an attorney in the CPCS Public Defender Division Appeals Unit. David Rangaviz, co-author of this piece, had no involvement in the case.

[ii] As to the CSLI, the SJC had previously ruled that the Commonwealth may obtain CSLI only pursuant to a warrant. Commonwealth v. Augustine, 467 Mass. 230 (2014). The Broom court held that the Commonwealth should have sought a warrant for the defendant’s CSLI, but that the error did not require reversal. The SJC found no prejudice in the evidence’s admission because (1) the CSLI was only for the day of and day before the murder, and (2) in light of the defendant’s DNA on the victim police had sufficient probable cause to retrieve his CSLI for those two days anyway. The court thus seemed to suggest that there was no prejudice because a warrant would have issued if sought. (The court has, however, previously rejected the notion that “an illegal warrantless search could be cured by proof that a search warrant, if sought, would have been issued and the evidence inevitably discovered.”  Commonwealth v. O’Connor, 406 Mass. 112, 115 (1989).)

[iii] The admission of the contents of the defendant’s cell phone was thus error, but the court upheld the conviction based on the strength of other evidence against the defendant, coupled with the fact that only a single text message was erroneously admitted.

[iv] Another recent opinion follows this trend. In Commonwealth v. Martinez, 476 Mass. 410 (2017), the court held that probable cause that the user of a certain IP address possesses child pornography is generally sufficient to justify a search of the residence assigned that IP address. The court nonetheless recognized that its holding may not “always” hold true as future technology “may further erode the connection between an IP address and a physical address” and “analysis hinges on fluid and rapidly changing technologies.” The court has recently heard argument in Commonwealth v. Keown (SJC-10593), in which the defendant argues that a warrant to search his laptop was insufficiently particularized, and therefore is likely to weigh in again on this issue in the near future.

[v] Justices Peter Agnes and Peter Rubin first cited the study in their dissenting Appeals Court opinions.  After their views did not carry the day – a three-justice majority of Chief Justice Rapoza and Justices Cypher and Green disagreed – a unanimous SJC embraced the dissenters’ opinion and rationale.

[vi] The SJC’s interest in evidence-based rulemaking is also apparent in recent decisions (all written by Chief Justice Ralph Gants) regarding eyewitness identification. In Commonwealth v. Crayton, 470 Mass. 228 (2014) and Commonwealth v. Collins, 470 Mass. 255 (2014), the court cited social science to limit the admissibility of in-court identifications. In Commonwealth v. Gomes, 470 Mass. 352 (2015), the court changed its model jury instruction regarding eyewitness identification to incorporate updated research, while “acknowledg[ing] the possibility that, as the science evolves, we may need to revise our new model instruction[] . . .”. Similarly, in Commonwealth v. Silva-Santiago, 453 Mass. 782 (2009), the SJC described a protocol, designed to decrease the risk of misidentification, for police to use before providing an eyewitness with a photographic array of potential suspects. The court recently reaffirmed this protocol’s importance in Commonwealth v. Thomas, 476 Mass. 451 (2017). The court will determine whether to extend Crayton and Collins in Commonwealth v. Dew (SJC-12225), currently pending.

[vii] The court also discounted the relevance of a police claim that the events occurred in a “high-crime area” and reiterated calls for caution regarding that claim in a reasonable suspicion analysis.

David Rangaviz is a staff attorney in the Appeals Unit of the Public Counsel Division of CPCS.

Ruth O’Meara-Costello is a partner at Zalkind Duncan & Bernstein LLP. Her practice focuses on criminal defense and student disciplinary matters


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

cosmas_willby William G. Cosmas

Practice Tips

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

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

An Apparent Attempt to Streamline

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

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

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

An Embrace of Retributive Justice

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

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

Narrowed Opportunity for Petitioners

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

Conclusion

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

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


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

lyons_crystalby Crystal L. Lyons

Case Focus

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

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

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

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

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

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

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

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

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

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

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

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

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

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


“We Bear a Responsibility to be Vigilant”

starkey_carolby Carol A. Starkey

President’s Page

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

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

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

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

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

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

Immigration:

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

Harassment, discrimination, and hate crimes:

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

Access to justice:

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

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

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


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

peranersweet_andreaby Andrea Peraner-Sweet

Heads Up

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

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

Overview

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

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

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

Use of Sex-Segregated Facilities

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

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

Improper or Unlawful Purpose

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

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

AGO Guidance, p. 5.

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

Request for Proof of Gender Identity

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

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

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

Best Practices

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

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

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

Andrea Peraner-Sweet is a partner at Fitch Law Partners LLP.  Her practice focuses on general business litigation with an emphasis on employment litigation as well as probate litigation.