Massachusetts courts applying the state Constitution have declined to adopt wholesale the federally created “good faith” exception to the exclusionary rule, instead crafting their own approach to exclusionary rule exceptions. This article identifies one application of the federal “good faith” exception that is in harmony with Massachusetts’ approach: where a search complied with then-existing law when it was undertaken but, before the validity of the search is litigated, the law changes in a way that would retroactively make the search unlawful.
Although no Massachusetts court has definitively spoken to this issue, the question is likely to arise soon. This is because, as personal-communications and information technology continues to develop, courts are issuing decisions that change what had previously been the settled understanding of search-and-seizure law. Compare 18 U.S.C. § 2703(d) (1986) (unless barred by state law, police may obtain order for non-content records concerning electronic communications if records are “relevant and material to an ongoing criminal investigation”) with Commonwealth v. Augustine, 467 Mass. 230 (2014) (Augustine I) (police must obtain warrant supported by probable cause to obtain certain cellular tower location records even though “neither the statute, 18 U.S.C. § 2703(d), nor our cases have previously suggested that police must obtain a search warrant”); compare Commonwealth v. Phifer, 463 Mass. 790 (2012) (permitting warrantless search of arrestee’s cellular telephone) with Riley v. California, — U.S. —, 134 S. Ct. 2473 (2014) (requiring warrant to search arrestee’s cellular telephone). Each such decision results in a class of searches that were valid when undertaken, but would be deemed invalid under the new law.
The Limits of the Exclusionary Remedy, the Federal “Good Faith” Exception, and Massachusetts’ Approach to Exclusionary Rule Exceptions
Both the federal and Massachusetts Constitutions prohibit unreasonable searches and seizures, but neither prescribes a remedy for one. See generally U.S. Const. amend. IV; Mass. Const. pt. 1, art. XIV. So, both federal and Massachusetts courts have developed the “exclusionary rule,” which provides generally that unlawfully obtained evidence must be suppressed from use in a criminal case.
Application of the exclusionary rule, however, comes at a cost: “It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence . . . [a]nd its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment.” Davis v. United States, 564 U.S. 229, 237 (2011); People v. Defore, 242 N.Y. 13, 21 (1926) (Cardozo, C.J.) (famously questioning whether “[t]he criminal is to go free because the constable has blundered”). For that reason, both federal and Massachusetts courts have insisted that the exclusionary rule be applied only if the benefits of suppression outweigh the costs. E.g., Herring v. United States, 555 U.S. 135, 140-141 (2009); Commonwealth v. Santiago, 470 Mass. 574, 578 (2015).
Under federal law, this weighing of costs and benefits led to the development of the “good faith” exception, beginning with United States v. Leon, 468 U.S. 897 (1984). In Leon, police executed a search warrant that had been approved by a state court judge but, in the ensuing federal prosecution, the federal court held that the warrant was not supported by probable cause. The Supreme Court concluded that suppression was inappropriate because the officers executing the warrant had an objectively reasonable good-faith belief that the search was lawful. The Court reasoned that the only legitimate purpose of the exclusionary rule is to deter police from committing future unlawful searches, and that “[p]enalizing the officer for the magistrate’s error . . . cannot logically contribute to the deterrence of Fourth Amendment violations.” Id. at 921.
Massachusetts courts applying the state Constitution have declined to adopt Leon. See, e.g., Commonwealth v. Valerio, 449 Mass. 562, 568-569 (2007); Commonwealth v. Pellegrini, 405 Mass. 86, 91 n.6 (1990). Moreover, in contrast with Leon, Massachusetts courts have defined the permissible purposes of the exclusionary rule more broadly than the U.S. Supreme Court has done. The Massachusetts exclusionary rule, like its federal counterpart, rests on a “foundation” and “primary purpose” of deterring future police misconduct. Santiago, 470 Mass. at 578; Commonwealth v. Wilkerson, 436 Mass. 137, 142 (2002). But Massachusetts law identifies a second purpose of the Massachusetts exclusionary rule that does not appear in federal doctrine: to “preserve judicial integrity by dissociating courts from unlawful conduct.” Commonwealth v. Nelson, 460 Mass. 564, 570-571 (2011); Commonwealth v. Gomes, 408 Mass. 43, 46 (1990) (applicability of exclusionary rule affected by extent to which violation undermines governing rule of law); Commonwealth v. Perez, 87 Mass. App. Ct. 278, 283 (2015) (same). Accordingly, the logic and reach of the federal “good faith” exception is different from Massachusetts’ approach to exclusionary rule exceptions.
Application of the Exclusionary Rule When a Search Complied with Then-Existing Law that Is Later Overturned
In the federal system, it was only a small step to extend Leon’s logic to a search that complied with then-existing law when it was undertaken, but that would retroactively be deemed unlawful based on a subsequent change in the law (either by statutory amendment or judicial decision). See Illinois v. Krull, 480 U.S. 340 (1987) (no suppression where warrantless administrative search was authorized by state statute, even though statute was later found unconstitutional); Davis v. United States, 564 U.S. 229 (2011) (no suppression where warrantless automobile search was authorized by Supreme Court precedent, even though that precedent was later overruled). In those decisions, the Supreme Court framed the issue as one of “good faith” under Leon. It also noted that the retroactivity of the new law does not mandate exclusion because retroactivity concerns whether a constitutional violation has occurred—not the remedy for any such violation. See Davis, 564 U.S. at 243-244 (“[T]he retroactive application of a new rule of substantive Fourth Amendment law raises the question whether a suppression remedy applies; it does not answer that question.”) (emphasis in original).
Massachusetts appellate courts have twice encountered such a situation, with equivocal results.
In Commonwealth v. Miller, 78 Mass. App. Ct. 860, 864-865 (2011), the Massachusetts Appeals Court, in dicta, explicitly endorsed an exception to the exclusionary rule where police officers comply with then-existing law. There, a State Trooper made a traffic stop because the words “Spirit of America” on the defendant’s license plate were obscured, a circumstance the Trooper believed to be prohibited by a Registry of Motor Vehicles regulation. The defendant sought to suppress evidence obtained in the ensuing encounter, arguing that the regulation was invalid because it exceeded the scope of the RMV’s rulemaking authority under the relevant statute and thus could not be used to justify the stop. The Appeals Court first observed that, even if the regulation were deemed invalid, the fruits of the stop would nevertheless be admissible: “[W]hen a police officer objectively and reasonably relies on an act of another government body (such as a legislative enactment or agency records) and the actions of that government body are later determined to be incorrect or invalid, evidence obtained by the otherwise proper actions of the police need not be suppressed.” Id. at 864-865. The court went on, though, to determine that the defendant had not violated the regulation, and accordingly found the traffic stop to have been unjustified.
On the other hand, in Augustine I, 467 Mass. at 254, the SJC implicitly rejected an exception where police officers comply with then-existing law. There, the court held for the first time that a search warrant was required to obtain certain cellular tower location records, notwithstanding that a federal statute (with which the police had complied in their investigation) required a lesser showing. The SJC remanded the case for determination whether probable cause to support a warrant would have existed, observing that suppression “should be allowed” if probable cause were lacking. Id. at 256. The court made that observation, however, without analyzing or articulating a holding as to the applicability of the exclusionary rule, even though that issue had been briefed by the parties.
How will the Massachusetts appellate courts rule in a case that squarely presents the issue of whether the exclusionary rule applies when a search complied with then-existing law, even if that search would retroactively be deemed unlawful? This author believes that Massachusetts’ broad view of the purposes of the exclusionary rule supports an exception where police officers comply with then-existing law.
Deterrence of future police misconduct—the exclusionary rule’s primary purpose under Massachusetts law and sole purpose under federal law—does not support suppression of evidence obtained through a search that complied with then-existing law, even if later changes would retroactively make the search unlawful. See, e.g., Davis, 564 U.S. at 241 (“About all that exclusion would deter in this case is conscientious police work.”); Wilkerson, 436 Mass. at 142 (where officer “did nothing wrong, there is no unlawful conduct for exclusion of the evidence to deter”). But, while a lack of deterrent value may be necessary to support an exception to the exclusionary rule, it is not sufficient under Massachusetts law. It can be said with equal force that suppression of the fruits of a Leon-type search (i.e., one authorized by a facially valid, but actually insufficient, warrant) serves no deterrent purpose—yet the Massachusetts courts have declined to apply an exception for a Leon-type search. So a lack of deterrent value cannot alone be determinative.
Massachusetts law, unlike federal law, recognizes a second purpose of the exclusionary rule: the interest in dissociating the courts from unlawful conduct and not undermining the governing rule of law. This second purpose supports suppression of a Leon-type search authorized by a facially valid (but actually insufficient) warrant: No law authorizes such a search and, when the warrant is reviewed through adversarial litigation, it will be deemed contrary to governing law.
This second purpose, however, does not support suppression where a search complied with then-existing law. As the SJC has previously observed, it does no violence to judicial integrity to admit evidence that was “properly obtained” under the law that governed the search. See Commonwealth v. Brown, 456 Mass. 708, 715 (2010) (“judicial integrity . . . is hardly threatened when evidence properly obtained under Federal law, in a federally run investigation, is admitted as evidence in State courts,” even though that evidence was obtained in manner that would have been impermissible under Massachusetts law). To the contrary, it may well harm the governing rule of law and diminish public confidence in the justice system to exclude such evidence based solely on the fortuitous timing of an intervening change in the law.
Thus, even though the federal rubric of “good faith” is inapposite for the reasons described earlier, this author believes that Massachusetts’ approach to the exclusionary rule independently supports an exception where police officers comply with then-existing law, regardless of subsequent changes to the law.
 In some cases involving arrests wrongly made on the basis of mistaken information chargeable solely to the police, Massachusetts courts have inquired into whether the search-and-seizure violation is “substantial and prejudicial” in determining whether to suppress evidence seized in the encounter. See generally Commonwealth v. Maingrette, 86 Mass. App. Ct. 691, 697-698 (2014) and cases cited therein. Application of this test, however, appears to be limited to such cases. Id.
 On remand, a Superior Court judge found that there was no probable cause and ordered suppression of the records. On the Commonwealth’s interlocutory appeal from that order, the SJC reversed the finding of no probable cause. Commonwealth v. Augustine, 472 Mass. 448 (2015) (Augustine II).
Eric Haskell is an Assistant Attorney General in the Criminal Bureau of the Attorney General’s Office, and 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 Office of the Attorney General. Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.
The Defend Trade Secrets Act of 2016 (“DTSA”) creates a federal private right of action for misappropriation of trade secrets — hitherto the province of state unfair competition law. It now provides original federal court jurisdiction for these questions, as for infringement of other “intellectual property” such as patents, copyrights and federally-registered trademarks. However, the jurisdiction is not exclusive, and the DTSA does not preempt state trade secret law, raising questions about the coexistence of the DTSA and Massachusetts law governing trade secrets. This Article explains salient aspects of the DTSA and differences from Massachusetts law that may be considered in asserting either or both.
I.Highlights of the DTSA
The DTSA has four important aspects:
- The DTSA allows “owners” to sue for “misappropriation” of “trade secrets” that are “related to a product or service used in, or intended for use in, interstate or foreign commerce.” 18 U.S.C. § 1836(b)(1). For purposes of the DTSA, a trade secret is “all forms and types of financial, business, scientific, technical, economic, or engineering information . . . if—(A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.” 18 U.S.C. § 1839(3).
- Courts may issue ex parte orders of “the seizure of property necessary to prevent the propagation or dissemination of the trade secret.” 18 U.S.C. § 1836(b)(2).
- Courts may issue injunctions to prevent “actual or threatened misappropriation,” provided that the order does not:
“(I) prevent a person from entering into an employment relationship, and . . . conditions placed on such employment shall be based on evidence of threatened misappropriation and not merely on the information the person knows; or
“(II) otherwise conflict with an applicable State law prohibiting restraints on the practice of a lawful profession, trade, or business.” 18 U.S.C. § 1836(b)(3)(A)(i).
- “Whistleblowers” are given immunity from federal or state trade secret suits for confidential disclosures made to government or the courts “solely for the purpose of reporting or investigating a suspected violation of law,” without otherwise preempting existing state law remedies for misappropriation of trade secrets. 18 U.S.C. §§ 1833, 1838.
II. What Is “Misappropriation” of “Trade Secrets”?
Massachusetts has not enacted the UTSA (enacted by 47 other states), which is the basis for the DTSA’s definition of “misappropriation” (see note 1). Instead, M.G.L. c. 93, § 42, provides:
Whoever embezzles, steals or unlawfully takes, carries away, conceals, or copies, or by fraud or by deception obtains, from any person or corporation, with intent to convert to his own use, any trade secret, regardless of value, shall be liable in tort. . . .
(Emphasis added.) “Trade secret” is defined in M.G.L. c. 266, § 30(4), as
anything tangible or intangible or electronically kept or stored, which constitutes, represents, evidences or records a secret scientific, technical, merchandising, production or management information, design, process, procedure, formula, invention or improvement.
In the decade following enactment of those provisions, the Supreme Judicial Court embraced Section 757 of the 1939 Restatement of Torts and its principles for defining “trade secrets” in its comment b. Today, Massachusetts courts apply Section 757 as equivalent to those two statutory provisions.
Massachusetts federal district courts have tested for trade secret “misappropriation” by asking if the defendant “used improper means, in breach of a confidential relationship, to acquire and use that trade secret.” However, as shown in the following table setting forth its text and that of the DTSA for comparison (emphases added), Section 757 recognizes some misappropriations that do not require acquisition by improper means. The DTSA adds a distinct misappropriation of acquisition by “improper means” without requiring “use.”
|1939 Restatement § 757||DTSA, as codified in 18 U.S.C. § 1839(3)|
|the term `misappropriation’ means–
(A) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
|One who discloses or uses another’s trade secret, without a privilege to do so, is liable to the other if||(B) disclosure or use of a trade secret of another without express or implied consent by a person who–|
|(a) he discovered the secret by improper means, or||(i) used improper means to acquire knowledge of the trade secret;|
|(ii) at the time of disclosure or use, knew or had reason to know that the knowledge of the trade secret was–|
|(b) his disclosure or use constitutes a breach of confidence reposed in him by the other in disclosing the secret to him, or||(II) acquired under circumstances giving rise to a duty to maintain the secrecy of the trade secret or limit the use of the trade secret; or|
|(c) he learned the secret from a third person with notice of the facts that it was a secret and that the third person discovered it by improper means or that the third person’s disclosure of it was otherwise a breach of his duty to the other, or||(I) derived from or through a person who had used improper means to acquire the trade secret;
(III) derived from or through a person who owed a duty to the person seeking relief to maintain the secrecy of the trade secret or limit the use of the trade secret; or
|(d) he learned the secret with notice of the facts that it was a secret and that its disclosure was made to him by mistake.||(iii) before a material change of the position of the person, knew or had reason to know that–
(I) the trade secret was a trade secret; and
(II) knowledge of the trade secret had been acquired by accident or mistake;
|1939 Restatement § 757 cmt. B||DTSA, as codified in 18 U.S.C. § 1839(3)|
|A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. . . . [I]t is not simply information as to single or ephemeral events in the conduct of the business. . . . A trade secret is a process or device for continuous use in the operation of the business. . . . Some factors to be considered in determining whether given information is one’s trade secret are: . . .
(5) the amount of effort or money expended by him in developing the information;
|the term “trade secret” means all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if—|
|(3) the extent of measures taken by him to guard the secrecy of the information;||(A) the owner thereof has taken reasonable measures to keep such information secret; and|
|(1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business;. . . (4) the value of the information to him and to his competitors; . . .and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others||(B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information|
As the table above shows the DTSA does not maintain a continuous-use requirement. (Some Massachusetts decisions have applied that requirement of continuous use to dismiss misappropriation claims that did not allege current use by the plaintiff, even where the plaintiff alleged it had been put out of business by the misappropriation.) Notwithstanding that difference, both comment b and the DTSA focus on reasonable protection of non-public information of economic value.
The DTSA, more clearly than Massachusetts law, protects information that is not currently used by the “owner,” as well as information acquired by improper means, but not currently used by the defendant.
III. Remedies for Misappropriation
Another significant difference between Massachusetts trade secret law and the DTSA is the remedies that are available.
Under Massachusetts law, a trade secret plaintiff may recover its direct damages (primarily lost profits) — potentially doubled under M.G.L. c. 93, § 42 — but not restitution (value to the defendant) or reasonable royalties (unless lost profits cannot be shown). It is uncertain if injunctions may be granted against inchoate use of trade secrets. (See note 3.)
In contrast, under federal law, a trade secret plaintiff may now recover in more ways than under Massachusetts law:
First, it may recover a non-duplicative combination of direct damages and unjust enrichment (restitution) or, alternatively, reasonable royalties. See 18 U.S.C. § 1836(b). Any of those remedies may be trebled, and the court may award attorney’s fees as well.
Second, it can get an injunction. Under the DTSA, except for employee protection, a court may enter an injunction “to prevent any actual or threatened misappropriation.” 18 U.S.C. § 1836(b)(3).
Third, it can get ex parte seizure of the misappropriated property. For this remedy, found in 18 U.S.C. § 1836(b)(2), a plaintiff must produce a verified application, among other things, specifying the property and its location and showing why other procedures (such as an ex parte temporary restraining order under Fed. R. Civ. P. 65) are inadequate. Ex parte seizure under section 1836(b)(2) is permitted “only in extraordinary circumstances” and only after the court considers protections for third parties and the target party, including a post-seizure hearing and wrongful seizure remedies. As such, it seems unlikely that the provision will be applied often.
IV. Employee Protection
The DTSA includes two significant protections for employees, who make up a large proportion of the defendants in trade secret cases (see note 4).
First, “to protect employee mobility,” the limitations quoted in section 1 prevent DTSA injunctions from (1) applying the “inevitable disclosure doctrine” (which bases a noncompetition injunction on the notion that a former employee will “inevitably” misuse his or her former employer’s trade secrets in new competitive position benefiting from those secrets) or (2) interfering with state laws limiting the enforceability of non-competition agreements and similar limits on employment (such as California’s broad prohibition on noncompetition agreements). Massachusetts courts are divided on the applicability of the inevitable disclosure doctrine. Concurrent assertion of the DTSA, which clearly rejects the doctrine, should not affect application under Massachusetts law, except perhaps tipping against such application by focusing on definitions of “trade secrets” that do not clearly include mental information that might be inevitably used, compared to the broader definition at UTSA § 1(4).
Second, whistleblowers received immunity for disclosures to the government of “a suspected violation of law.” Title 18 U.S.C. § 1833(b)(3)-(4) requires “notice of the immunity [be given] . . . in any contract or agreement with an employee that governs the use of a trade secret or other confidential information,” including “any individual performing work as a contractor or consultant for an employer.” If that notice is not given, the employer cannot receive treble damages or attorney’s fees in a DTSA action. Employers should therefore provide the notice, even if by cross-reference to a policy document (which federal law permits).
The DTSA does not alter how to protect proprietary information in Massachusetts — reasonable measures are still required — but, importantly, does provide clearer protection for proprietary information not currently used and against threatened wrongful use. It also provides the possibility of ex parte seizure and greater potential in damages.
Moreover, with a broad jurisdictional grant without a threshold amount, claims under the DTSA provide easy access to federal court and the broad interstate discovery in federal-court proceedings. Claims under the DTSA may also be asserted in state court, but some of the federal-court procedures, such as ex parte seizure, may require adaptation.
 The DTSA definition of “misappropriation” drew from the definition used in the 1979/85 Uniform Trade Secrets Act (“UTSA”), available at http://www.uniformlaws.org/shared/docs/trade%20secrets/utsa_final_85.pdf (visited Jan. 10, 2017). Compare 18 U.S.C. § 1839(5), with UTSA § 1(2) (“misappropriation”); compare also 18 U.S.C. § 1839(6), with UTSA § 1(1) (“improper means”). However, the DTSA term is applied to a “trade secret” and “owner” as defined by the Economic Espionage Act of 1996, 18 U.S.C § 1839(3) and (4), which are more consonant with the criminal targets of that statute, id. §§ 1831 and 1832, than with the civil unfair competition targets of the UTSA (which eschewed the concept of an “owner” and applies to more general “information” than the EEA “types”).
 E.g., Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835, 840 (1972) (citing Restatement (First) of Torts § 757 cmt. b (Am. Law Inst. 1939)). See Incase Inc. v. Timex Corp., 488 F.3d 46, 52 n.10 (1st Cir. 2007) (“The statutory and common-law claims may be essentially equivalent.”).
 E.g., Infinity Fluids, Corp. v. General Dynamics Land Sys., 2016 U.S. Dist. LEXIS 134613 at *26 (D. Mass. 2016). Massachusetts cases are split on whether actual, current “use” is required for misappropriation; the Supreme Judicial Court has declined to address the issue. See Lightlab Imaging, Inc. v. Axsun Tech., Inc., 469 Mass. 181, 186-87 (2014),
 Most trade secret cases involve “breach of confidential relationship,” where information is properly acquired by employees or business associates, but its use allegedly exceeds limits permitted by the relationship. See Almeling, et al., A Statistical Analysis of Trade Secret Litigation in State Courts, 46 Gonz. L. Rev. 57 (2010).
 The UTSA (which, again, Massachusetts has not enacted) also lacks a continuous-use requirement. A comment to the UTSA explains that such a requirement “extends protection to a plaintiff who has not yet had an opportunity or acquired the means to put a trade secret to use.” UTSA § 1(4), cmt.
 E.g., Portfolioscope, Inc. v. I-Flex Solutions Ltd., 473 F. Supp. 2d 252, 255 n.6 (D. Mass. 2007).
 Jet Spray Cooler, note 2 supra; Curtiss-Wright Corp. v. Edel-Brown Tool & Die Co., 381 Mass. 1 (1980).
 Cal. Bus. & Prof. Code § 16600.
 Compare Safety-Kleen Sys., Inc. v. McGinn, 233 F. Supp. 2d 121, 125 (D. Mass. 2002) (inapplicable as threatened use), with U.S. Elec. Serv., Inc. v. Schmidt, 2012 U.S. Dist. LEXIS 84272 (D. Mass. 2012) (applicable for irreparable injury, not likelihood of success), with Corporate Tech., Inc. v. Harnett, 943 F. Supp. 2d 233 (D. Mass. 2013) (applicable for likelihood of success).
 Consider the theft-and-conversion language of Chapter 93, Section 42 and the EEA crimes against “owners” (note 1 supra). Can one “own” what is in another’s memory, experience and skills?
Stephen Y. Chow, Burns & Levinson LLP, litigates technology disputes, prosecutes patent applications, and develops technology policies, strategies and licenses. He has been a Massachusetts Uniform Law Commissioner since 1994.
Mental Health Courts: Providing Access to Treatment, Restoration of Human Dignity and Recovery with JusticePosted: October 25, 2016
Voice of the Judiciary
A mental health court is a specialty court whose purpose is to serve mentally ill criminal offenders in the early stages of the criminal process by offering a diversionary program of treatment and strict supervision instead of arrest and detention. It is a collaborative effort between the criminal justice and the mental health treatment systems intended to improve the quality of life of individuals with severe mental illness by providing access to comprehensive services instead of incarceration and to improve public safety by reducing recidivism.
Although it is undisputed that mental Illness rarely leads directly to criminal behavior, many mentally ill people find themselves in court facing criminal complaints when their behaviors become threatening, aggressive or dangerous to themselves or others. The use of substances such as alcohol and illegal drugs to self-medicate by the mentally ill populace further increases the likelihood of court involvement.
Experience shows that for individuals with severe mental illness, brief periods of custodial detention tend to exacerbate symptoms associated with depression, paranoia and anxiety. Often individuals have difficulty complying with standard reporting requirements imposed by probationary terms or conditions of release while awaiting trial. Those individuals can be disorganized and overwhelmed by the demands of daily living due to their mental illness. The end result often is a cycle of arrest, incarceration, release and re-arrest with little hope of recovery or successful integration into the community. National and state evidence reveals a disproportionate number of individuals with some form of mental illness within the justice system as compared with the general population.
The creation and development of mental health courts in the Commonwealth is due in large part to the vision of retired Judge Maurice Richardson coupled with a generous private grant from the Sidney Baer Foundation (http://www.baerfoundation.com). Judge Richardson recognized the cycle of court involvement for those suffering from a mental illness and the overriding need for a collaborative approach between the behavioral health system and courts to effectuate improved outcomes. The importance of the role of the Sidney Baer Foundation in combating mental health issues cannot be overstated. Sidney Baer was a member of a wealthy and prominent family from the Midwest. While studying at Yale University, Sidney suffered a nervous breakdown and was diagnosed with schizophrenia. He never graduated from Yale due to the challenges and obstacles that his mental illness presented. With the help and advice of his friend and personal lawyer, Attorney George Handran, he established the Sidney Baer Foundation for the purpose of alleviating the suffering and loss of opportunities endured by the mentally ill. In 2007, in concert with the Boston Medical Center, the Trial Court received initial funding from the Baer Foundation and established the first mental health court in the Commonwealth in the Boston Municipal Court. http://www.baerfoundation.com/
There are presently seven mental health courts operating in the Commonwealth. The Boston Municipal Court Department holds weekly sessions in the Central, Roxbury and West Roxbury Court Divisions. The District Court Department operates mental health courts in Springfield, Cambridge, Plymouth and Quincy Courts.
Each court utilizes a team based and problem solving approach. The judge, probation officer, mental health clinician, prosecutor and defense attorney maintain their distinct roles, but work in a collaborative effort to monitor the individual participant’s progress in adhering to the terms of probation, in securing and maintaining treatment and in achieving recovery.
Eligibility for participation differs to a small degree among the mental health courts in the Commonwealth. Some Courts will accept defendants pre-trial with untried open matters. Several courts require a post disposition probationary status. Participation is voluntary. The Judge has authority to return the case to the traditional court system when there is a breach by the defendant of the program’s policies.
The process begins by a referral to the mental health court session. After consultation with a mental health clinician and the probation officer, eligibility is determined based upon the nature and circumstances of the offense, a psychiatric diagnosis, history of mental health treatment and the willingness of the participant to accept treatment and participate in the session. The clinician will then make a recommendation to the judge. Once accepted, each participant receives an individualized treatment plan. The participant is required to return to the court session regularly for a remedial review of the effectiveness of the participant’s individualized treatment plan and an evaluation by the court of any obstacles and impediments that interfere with the participant’s ability to receive and maintain mental health treatment. This ‘holistic’ approach is an important component to the session and it reinforces the message of the court to all participants that their lives have value and that the court is an invested partner in their recovery efforts.
CPCS Attorney David Shea, a public defender and mental health court practitioner maintains that, ”Criminal cases often implicate serious collateral consequences-apart from potential incarceration-including housing, employment, education, and child custody problems…….Many clients find this holistic approach novel to a courtroom setting and the result is a dynamic that often engenders a powerful motivator; hope.”
Presently, there are over 200 defendants participating in mental health courts in the Commonwealth. 25 % are female and 75% are male. Over 60 % of the participants report a co-occurring substance use disorder and over 50% report a history of homelessness. The most common mental health diagnoses are bipolar, schizophrenia and schizoaffective disorder. The racial breakdown of participants is 47% white and 37% black. From June 2015 to June 2016, 40% of the participants successfully completed the mental health court program. The average length of participation in a mental health session is 9-12 months.
It is evident that the future of mental health courts in the Commonwealth will see increased participation due to the Trial Court’s recognition of the importance of addressing the unique and specialized needs of the mentally ill. To that end, the Trial Court has engaged in a state wide ‘Community Justice Project’ to identify resources and programs that will divert individuals diagnosed with a mental illness or substance use disorder at key events or ‘intercepts’ from the justice system and direct them to behavioral health treatment. By acknowledging the benefits of treatment and rehabilitation in lieu of incarceration, the mental health courts extend a compassionate alternative and instill a sense of hope in a vulnerable population.
The success of mental health courts can best be summed up by the words of a recent graduate from the West Roxbury Court’s ‘Recovery with Justice Program’. He told the court, “This program has broken the chains that kept pulling me back to jail. Thank you for giving me back my life. With the treatment you have helped me get, I now have hope that I will be able to work and be a part of my daughter’s life and I will stay out of trouble. “
Appointed to the bench in 1993 b y Governor William Weld, Judge Kathleen Coffey has been First Justice of the West Roxbury Court for the past nineteen years. She is the Director of Specialty Courts for the Boston Municipal Court Department. In 2007, she established the first Mental Health Court, and in 2010, the Homeless Court held at the Pine Street Inn.
Voice of the Judiciary
Our country has been at war for almost 15 years. Deployments take a toll on soldiers and their families. Some get arrested because they suffer from Post-Traumatic Stress or traumatic brain injury and they self-medicate with alcohol and/or drugs. If those defendants are within the Boston Municipal Court Department (BMC) jurisdiction, the Boston Veterans Treatment Court (BVTC) may be an alternative to the regular court trial track.
I served as a Navy Intelligence Officer and had the honor of being attached to Special Operations Command, Korea (SOCKOR). My husband Richard Sinnott, a private attorney practicing in Boston, is a Lieutenant Colonel Judge Advocate in the Army Reserve. He deployed to Kuwait in 2003. My familiarity with military culture both by being a military officer and the spouse of a deployed soldier, and having worked with combat veterans, helps in my interactions with and understanding of veterans as the presiding judge of the BVTC.
Why do I say BVTC “may” be an alternative?
The BVTC focuses on high risk/high needs veterans facing serious charges where there is a nexus between their current problem and their military experience. Individual treatment plans are created for them and each veteran is assigned a mentor. Because the program is usually about
18 months of probation and involves intensive treatment and monitoring, it may not be appropriate for a veteran facing less serious charges.
Probation (which is often pretrial probation), consists of weekly court appearances that taper as the veteran progresses through five phases. Once a treatment plan is established, each week the veteran is tested for drugs and alcohol, must attend three Alcoholics Anonymous or Narcotics Anonymous meetings each week, meet weekly with a probation officer and have mentor contact.
How does a veteran get considered for the BVTC?
If a veteran is arraigned in the BMC Central Division, the case is automatically scheduled for the earliest Friday in the BVTC, for assessment of eligibility. If a veteran is arraigned in one of the other BMC divisions, the veteran’s attorney submits a referral and the case is scheduled for a status date in that same division 4 weeks later. During that time, the veteran is told to visit a BVTC session, given the participant handbook, and a clinical evaluation is scheduled to assess whether there is a nexus between their military service and current case and whether the BVTC can provide the appropriate treatment. (http://www.mass.gov/courts/docs/specialty-courts/veterans-treatment-court-referral-form-boston.pdf)
Because the BVTC session is a voluntary program, the veteran then has the option to opt in or go the normal trial track.
What are the benefits to the veteran?
For most defendants, their cases will resolve by dismissal. Suffolk District Attorney Daniel Conley supports such resolutions because, in his own words: “Veterans are asked to fight and die in defense of their country. But many aren’t given the tools to readjust to peacetime lives. As a result, they’re at a much greater risk of unemployment, substance abuse, and untreated mental illness, which all contribute to increased contact with the criminal justice system. So with Veterans Court, our goal is to help defendants overcome those challenges rather than be overcome by them.” Dismissals give them a better chance at employment and other opportunities. Most importantly, the veterans receive treatment monitoring and support in areas such as housing, employment, possible upgrades in military discharge status, and legal assistance in civil matters.
Who is on the treatment team and why should I trust that they would know what is best for the veteran?
Most team members have extensive military backgrounds and are committed to the BVTC mission: To provide veterans whose underlying service related challenges brought them into the justice system – with a tailored but flexible supervised treatment program that restores their dignity and pride and returns them to being law abiding, productive members of civilian society.
A unique and essential aspect of veterans courts is peer mentoring, described by Judge Robert Russell of New York, as the “secret sauce” for the success of veterans courts. Don Purington is the peer specialist/mentor coordinator for the BVTC and oversees mentoring for all five veterans courts in Massachusetts. Although he is the assigned mentor to several BVTC veterans, he is an unofficial mentor to them all.
Mr. Purington’s story is one of redemption. He is a combat veteran who served in the United States Marine Corps from 2005 – 2009 as a fire team leader and squad leader during combat operations in Iraq in 2006. Upon discharge, Mr. Purington was addicted to opiates and began breaking the law to obtain drugs. After detoxing in a jail cell, he was offered the opportunity for treatment and help putting his life back on track. He received inpatient treatment for more than a year and was able to move past his legal issues. A veteran served as a mentor to Mr. Purington, which started him on his path to working with veterans.
Mr. Purington connects with BVTC veterans by sharing his journey, which is a source of strength for them. As he explains: “Some of the most comforting words to someone who is at rock bottom are ‘I understand what you are going through.’ Had I not gotten the mentor that I did and the opportunity to get the help I needed I would be either dead or in jail. It has been 6 years since I started my journey of sobriety and I will continue to use my mistakes to try and help others.” A BVTC veteran described him as “… the most inspirational and biggest positive influence of them all. He is truly like a big brother to me, blood or not. I sincerely love and appreciate this man for everything! … I really hated disappointing him more than anyone.”
The gateway to the BVTC is through probation officer Geri Jurczak (email@example.com). After receiving the one page referral, the eligibility assessment begins. As part of that process, the veterans are drug and alcohol tested and must abide by the program requirements. Ms. Jurczak conducts home visits and offers referrals to the veterans’ families as needed. A veteran described his experience with Ms. Jurczak like this:
… I have been on probation once before and it made me feel as if I was being set-up for failure … [Ms. Jurczak] was the complete opposite of what I believed a probation officer to be… She was there for me whenever I had struggles or problems. … She was a huge part of my success and I owe her more than I can give. BVTC is very unorthodox compared to conventional courtrooms because they recognize the need to help veterans returning home from combat. It takes a very special person … to work with combat veterans. … I will forever be grateful for her help in bettering my life.
Suffolk Assistant District Attorney Brett Walker (firstname.lastname@example.org ) is assigned to the BVTC. A West Point graduate and a Ranger, who was awarded two Bronze Stars, ADA Walker has served for 12 years as a light infantry officer in the U.S. Army and the Massachusetts National Guard. An Army Major, he has deployed to Afghanistan and Iraq. He makes a habit of shaking hands with the defendants at each session.
Attorney Vanesa Velez of the Committee on Public Counsel Services (CPCS) regularly represents BVTC veterans (email@example.com). While providing zealous advocacy she understands the BVTC treatment approach.
Thomas Palladino, a licensed social worker, is the BVTC Veterans Justice Outreach Coordinator. He creates the treatment plans and is responsible for the initial assessments and continuing case management. The team meets weekly before the regular Friday session. Because the BVTC is a high risk, high needs court, Mr. Palladino frequently makes last minute changes to treatment plans. He has found immediate placement in detox or residential treatment programs when veterans have been in crisis.
All combat veterans can obtain VA benefits through the Boston Vet Center. Amy Bonneau, a Captain in the Massachusetts National Guard, who deployed to Kabul, Afghanistan in 2010, is a licensed social worker and works as a readjustment counselor at the Boston Vet Center.
John Quinn is a Veteran Outreach Coordinator for the Home Base Program (http://homebase.org) – a partnership with the Red Sox Foundation and Massachusetts General Hospital, which provides eligible veterans with world-class clinical care, fitness, wellness and family counseling. Mr. Quinn proudly served in the 101st Airborne Division, U.S. Army Military Police.
Paul Connor, a Captain in the Army National Guard, assists the BVTC with veterans who suffer a severe relapse. Early this year, Mr. Connor was asked by Sheriff Peter Koutoujian to implement the first Massachusetts correctional unit for incarcerated veterans or pretrial detainees. The Middlesex County Sheriff’s Housing Unit for Military Veterans (HUMV) allows veterans to share experiences and offers programs tailored to them.
The final team member is Assistant Clerk Magistrate Christopher Phillips, who served in the Marine Corps from 1984 –1997 and is currently a judge advocate major in the Army Reserve.
Judge Eleanor C. Sinott is the presiding judge of the Boston Veterans Treatment Court.
On June 3, 2016, Governor Baker signed into law House Bill No. 4333, An Act to Improve Public Records (St. 2016, c. 121) (the “Act”). Described by the Governor as a “new way of doing business,” the Act is the first major overhaul of Massachusetts’ Public Records Law since 1973. The new law is intended to improve access to public records, address administrative challenges faced by records custodians (particularly municipalities) responding to expansive public records requests, and promote cooperation between requestors and custodians. Among the most significant new requirements, which will take effect on January 1, 2017, are:
- Custodians of public records must designate a “public records access officer.”
- Digital records are to be produced whenever available.
- New statutory deadlines for responses to requests.
- New limits on fees for producing records.
- Availability of attorney’s fees and punitive damages.
The new law also requires the Supervisor of Public Records of the Office of the Secretary of the Commonwealth to create forms, guidelines, and reference materials to assist public records requests and responses. Act, § 7, inserting G.L. c. 66, § 1A. The Supervisor’s current regulations are being updated to reflect the new law. (See Proposed 950 CMR 32.00). This article summarizes several significant provisions of the new law.
Impetus for the New Public Records Law
The new Public Records Law was passed on the heels of a report card by the Center of Public Integrity that gave the Commonwealth a D+ for government accountability and transparency. The report found that “routine records, from agency emails to internal datasets, can take weeks or months to obtain from state agencies, at costs running from a few hundred dollars to the not-unheard-of multi-million-dollar bills sent to some requesters.” Critics also complained that the law does not apply to the courts or the legislature, and argued that the statutory exemptions for certain agency records hindered government oversight. Agencies and municipalities, in contrast, expressed concerns about overly burdensome records requests and insufficient personnel and technical support to manage the process efficiently. The new law focuses on administrative and procedural aspects, and leaves largely unchanged the categories of documents and entities subject to the law.
Requirements for Making a Public Records Request
Under the new law, records custodians must respond to a request only if:
- the request reasonably describes the public record sought;
- the public record is within the possession, custody or control of the agency or municipality that received the request; and
- the custodian receives payment of a reasonable fee as set forth in subsection (d).
Under the old law, a request could be in oral or written form. Written requests were recommended if there was substantial doubt as to whether the records requested were public, or if an appeal was contemplated. See 950 CMR 32.05(3). The Supervisor’s proposed regulations expressly permit oral requests; the new law does not expressly address the issue. See Proposed 950 CMR 32.07(1)(a); Act, § 10, amending G.L. c. 66, § 10(a).
Duties of the Newly-Created Records Access Officer
The new law requires records custodians to designate one or more employees as a “records access officer,” to coordinate responses to and facilitate resolution of requests. See Act, § 9, inserting G.L. c. 66, § 6A. The records access officer must help identify the documents requestors seek; prepare guidelines to enable informed requests about the availability of records; and document all requests, including the request and response dates, the time spent fulfilling each request, fees charged, and details of all appeals. The guidelines must be posted on the custodian’s website and must list the categories of public records that the custodian maintains. Id.
When responding to a public records request, a records access officer must help facilitate resolution of the request, including by:
- identifying any public records or categories of public records not within the agency or municipality’s control;
- identifying the agency or municipality that may have the requested records;
- identifying any records (or portions thereof) that the custodian intends to withhold, and providing the specific reasons for such withholding, including the specific exemption(s) relied upon;
- identifying any public records (or portions thereof) that the custodian intends to produce, and, if applicable, providing a detailed explanation of why additional time is required to produce the records; and
- suggesting a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably.
Act, § 10, amending G.L. c. 66, § 10(b). Records are to be provided by electronic means when possible, unless the requestor is unable to receive or access the records in a usable electronic form. Act, § 9, inserting G.L. c. 66, § 6A(d).
Agencies—but not municipalities—must provide on their websites searchable electronic copies of many public records such as agency decisions, annual reports, winning bids for public contracts, public meeting notices and minutes, and “information of significant interest that the agency deems appropriate to post.” Act, § 14, inserting G.L. c. 66, § 19(b). These provisions, combined with the detailed record-keeping requirements imposed by the Act concerning the disposition of public records requests, see Act, § 9, inserting G.L. c. 66, § 6A(e), are intended to improve the response process significantly.
New Deadlines for Responding to Public Records Requests
The Act establishes new deadlines within which custodians must respond to public records requests. The new deadlines attempt to balance the interest in timely disclosure of public records with the agencies and municipalities’ administrative interests.
The old version of the Public Records Law contained two related, but not altogether harmonious, provisions concerning the response time for a public records request. Chapter 66, § 10(a) provided that a custodian “shall, at reasonable times and without unreasonable delay” permit the inspection and copying of public records, while § 10(b) specified that a custodian “shall, within ten [calendar] days following receipt of a request for inspection or copy of a public record, comply with such request.” G.L. c. 66, § 10(b); Secretary of the Commonwealth, Division of Public Records, A Guide to the Massachusetts Public Records Law, 1, 6 (2013). The Supreme Judicial Court has interpreted these provisions to mean that custodians must always respond to public records requests “without unreasonable delay,” and that producing a record within ten days is “presumptively reasonable.” Globe Newspaper Company v. Comm’r of Education, 439 Mass. 124, 130-31, 133 n.13 (2003). Thus, under the old version of the law, a delay beyond ten days could be “reasonable” if a custodian demonstrated that the “magnitude or difficulty of the request and the other responsibilities of the agency” prevented it from satisfying the ten-day deadline. Id. at 132 n.12.
The new law takes a different approach: it permits custodians more than ten days to respond to certain types of requests but limits the duration of permissible extensions of time to respond. Section 10(a), as amended, provides that a records access officer shall “at reasonable times and without unreasonable delay permit inspection or furnish a copy of any public record … not later than 10 business days following the receipt of the request.” Act, § 10, amending G.L. c. 66, § 10(a). If the “magnitude or difficulty of the request, or the receipt of multiple requests from the same requestor” makes an agency unable to respond within the ten-day period, the custodian must identify a “reasonable timeframe” for compliance. The outer limits of an agency’s response “shall not exceed 15 business days following the initial receipt of the request for public records,” and a municipality’s response “shall not exceed 25 business days” following the initial receipt of the public records request. Id., amending G.L. c. 66, § 10 (b)(vi).
Further extensions may be granted by the Supervisor of Public Records if the magnitude or difficulty of a request (or the receipt of multiple requests from the same requestor) unduly burdens the agency or municipality and prevents timely compliance. In such cases, the Supervisor may grant an agency a “single extension” not to exceed 20 business days and a municipality a “single extension” not to exceed 30 business days. Act, § 10, amending G.L. c. 66, § 10(c).
The new law does not expressly address two questions likely to be faced by courts. The first is whether a custodian who has not produced documents within the maximum period allowed under the Act is entitled to prove, as under the current law, that there has been no “unreasonable delay” because of the scope of the request and the resources needed to achieve compliance. The answer to that question may turn on whether the specified durations of extensions of time permitted under the Act, including the express reference to the Supervisor of Records’ authority to grant just a “single extension,” supplant potentially more permissive interpretations of the term “without unreasonable delay.” See generally Comm’r of Education, 439 Mass. at 130-31.
The second likely question concerns the use of public records requests by litigants who sue or are sued by the government. Unlike discovery requests, public records requests are not cabined by principles of relevance, nor are custodians permitted to consider a requestor’s motivation in asking for a document. See 950 CMR 32.05 (5). Public records requests by litigants who seek extra-judicial discovery might require courts to determine whether the deadlines established by the Act are subject to modification based on a case-specific application of the “without unreasonable delay” standard. The Supervisor’s Proposed Regulations anticipate this issue by providing that a requestor’s administrative appeal may be denied if “the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation.” Proposed 950 CMR 32.09(j)(1).
Permissible Charges for Public Records
A custodian may assess a reasonable fee for the production of a public record unless the records are freely available for public inspection or unless the custodian failed to respond to the request within the required ten business days. Act, § 10, amending G.L. c. 66, §§ 10(d) and 10(e). The “reasonable fee” is limited to the actual cost of reproducing the record. Id., § 10(d)(i). The actual cost of any storage device or material provided may be included as part of the fee, but the charge for standard black-and-white paper copies or printouts of records cannot exceed 5 cents per page for copies or printouts. Id. Formerly, records custodians could charge between 20 and 50 cents per page, depending on whether the copy was a photocopy, microfilm or microfiche, or computer printout. See 950 CMR 32.06(a), (b), (d).
The new law also permits a custodian to charge for time in excess of four hours spent locating, retrieving, copying and, if necessary, redacting the records. The fee may be charged at an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill to perform the tasks, not to exceed $25 per hour. Act, § 10, amending G.L. c. 66, § 10(d)(ii). Municipalities have additional leeway. Those with populations of less than 20,000 may charge for all such time, while those with populations of more than 20,000 may charge for time in excess of two hours. Agencies and municipalities may seek the Supervisor’s approval to charge more than $25 per hour if (a) the request is for a commercial purpose or (b) the fee was necessary and reasonable to prudently perform the tasks and was not intended to prevent access to public records. Id., amending G.L. c. 66, § 10(d)(iv).
The Recovery of Attorneys’ Fees and Punitive Damages
The new law creates a presumption in favor of awarding attorneys’ fees and costs if the requestor obtains relief either through judicial order or consent decree, or if the agency provides the documents after a complaint is filed against it. See Act, § 10, inserting G.L. c. 66, § 10A(d)(2). There is no presumption in favor of attorneys’ fees in cases where:
- the supervisor of records previously ruled in the custodian’s favor;
- the custodian “reasonably relied upon a published opinion” by the attorney general or by an appellate court of the Commonwealth that was “based on substantially similar facts”;
- the request was “designed to harass or intimidate”; or
- the request was “not in the public interest and made for a commercial purpose unrelated to disseminating information to the public about actual or alleged government activity.”
Under the new law, the Superior Court also may assess punitive damages between $1,000 and $5,000 against a defendant custodian if the custodian did not act in good faith in failing to timely furnish a requested record. Act, § 10, inserting G.L. c. 66, § 10A(d)(4). Any damages will be deposited into the Public Records Assistance Fund and may be used to provide grants to municipalities to foster best practices for increasing access to public records and facilitate compliance with the public records law. Act, § 6, inserting G.L. c. 10, § 35D.
If the amendments achieve their intended purpose, the “new way of doing business” under the Public Records Law should improve communications between requestors and records custodians, increase the number of public records available online, establish enforceable timeframes for producing public records, impose cost controls to reduce excessive fees, and enhance enforcement efforts by allowing attorneys’ fees awards.
 Among the provisions of the Act not addressed by this article are (a) the creation of a special legislative commission to “examine the constitutionality and practicality of subjecting the general court, the executive office of the governor and the judicial branch to the public records law” and to issue a report by December 30, 2017, Act, § 20(c); (b) a new exemption for personal emails of public employees, Act, § 4, amending G.L. c. 4, § 7, cl. 26(o) and (p) and Act, § 9, inserting G.L. c. 66, § 6A(c); and (c) a provision expressly applying the Public Records Law to the Massachusetts Bay Transportation Authority Retirement Board but granting the Board an exemption for trade secrets or commercial or financial information that relates to the investment of public trust or retirement funds, Act, 14, inserting G.L. c. 66 §21.
 “Commercial purpose” is defined as the “sale or resale of any portion of the public record or the use of information from the public record to advance the requestor’s strategic business interests in a manner that the requestor can reasonably expect to make a profit, and shall not include gathering or reporting news or gathering information to promote citizen oversight or further the understanding of the operation or activities of government or for academic, scientific, journalistic or public research or education.” Act, § 10, inserting G.L. c. 66, § 10(d)(ix).
Jonathan M. Albano is a partner at Morgan Lewis & Bockius LLP.
Emma D. Hall is an associate at Morgan Lewis & Bockius LLP.
May a couple’s childrearing practices, which are not illegal and are deeply rooted in their sincere religious convictions, disqualify them from becoming foster and pre-adoptive parents? In the closely watched case Magazu v. Department of Children and Families,[i] the Justices unanimously answered “yes.” Here, I argue that while Magazu may have been correctly decided, the Court’s analysis has troubling implications for the expansion of agency power.
Path to the SJC
Gregory and Melanie Magazu had two biological daughters but wanted a larger family. Concerns about Melanie’s health led them to apply to become foster and pre-adoptive parents. The couple seemed ideally suited to foster and then adopt a child who was in the Department of Children and Families’ (“DCF”) care – until they revealed that they occasionally used physical punishment on their biological children. Believing as a matter of religious faith in the maxim “spare the rod, spoil the child,” Greg or Melanie, on the few occasions when one of their daughters engaged in “a continuous pattern of disobedience,” would spank the child on the buttocks by hand in the privacy of the girl’s bedroom.[ii]
DCF regulations prohibit the use of corporal punishment on a foster child.[iii] Accordingly, the Magazus were prepared to enter into a written agreement not to use corporal punishment on any foster child placed in their home and never to physically punish one of their biological children in the presence of the foster child. The couple would not, however, and for religious reasons could not, agree to forego physical discipline of their biological children. Citing their refusal, DCF denied the Magazus’ application to become foster and pre-adoptive parents. The Magazus appealed. At the administrative hearing, DCF’s witnesses testified that foster children typically have been subjected to abuse and neglect and could be re-traumatized by direct or indirect exposure to corporal discipline. DCF acknowledged that it had no written policy disqualifying parents who physically discipline their biological children from becoming foster parents, but maintained that such was its unwritten policy and practice. First the hearing officer, and then a Superior Court judge, affirmed DCF’s denial of the Magazus’ application. The Supreme Judicial Court transferred the case sua sponte from the Appeals Court.
The Justices faced two questions of law. First, was DCF’s decision arbitrary and capricious, based on an irrational interpretation of its statutory and regulatory authority, and/or ungrounded in substantial evidence, in violation of DCF’s statutory and regulatory mandates? Second, by conditioning the couple’s receipt of a government benefit on their renunciation of their religious practices, did DCF violate the Magazus’ free exercise rights under the Federal and Massachusetts Constitutions?
The Justices dismissed both claims. The Court deferred–almost without scrutiny–to DCF’s policy of not placing foster and preadoptive children in homes where parents physically discipline their children. Notwithstanding that the policy was “not . . . articulated in express terms,” the Court held that “such a policy falls squarely within the parameters of the department’s enabling legislation and companion regulations, and is rationally related to the department’s objectives in the placement of foster children.”[iv] The Court next applied the familiar “balancing test” of Wisconsin v. Yoder[v] and Attorney Gen. v. Desilets[vi] to the constitutional claim. The Court concluded that DCF had substantially burdened the Magazus’ practice of their sincere religious convictions by presenting them with an untenable choice: the couple could become foster parents by abandoning their religiously-motivated practices, or they could continue their faith-based disciplinary practices and abandon any hope of becoming foster and pre-adoptive parents. Nonetheless, the Court held that the substantial burden on the Magazus’ constitutional rights was outweighed by the State’s “first and paramount duty,” rooted in its ancient parens patriae authority, to protect children from actual or potential harm.[vii] The decision shut the door on the Magazus’ hopes to foster and adopt children through DCF.
Judging By Unwritten Rules
It is easy to assume that Magazu was correctly decided. Both common sense and compassion argue for taking every precaution to protect emotionally fragile children from further harm. Nonetheless, the Court’s reasoning is troubling on at least two fronts.
First, the Court extended unwarranted deference to DCF’s “unwritten” policies and procedures. A fundamental objective of the Administrative Procedures Act, G. L. c. 30A, which governs DCF’s actions, is to ensure the agency’s objectivity, accountability, transparency, predictability, and uniformity in its application of policies and other practices.[viii] Permitting DCF, or any agency, to rely on unwritten rules severely limits judicial oversight of agency discretion. How does a court distinguish between a legitimate unwritten policy and post hoc rationalization? How is a court to know, for instance, when the unwritten rule was adopted, by whom, for what reason, and how it was communicated?
The Court’s deference to DCF’s unwritten policies rested on the thinnest of precedents. In both cases on which the Court relies, Anusavice v. Board of Registration in Dentistry[ix] and Arthurs v. Board of Registration in Med.,[x] the agency’s position on the unethical or criminal characteristics of the conduct at issue could readily have been foreseen from prior published agency decisions. Here, the Magazus’ disqualifying conduct was legally permissible: within limits, one may spank one’s child. See, e.g., Commonwealth v. Dorvil; Cobble v. Department of Soc. Services.[xi] The Magazus had no notice that their lawful conduct would disqualify them to be foster parents.
Justice Cordy’s concurrence, joined by Justices Botsford and Duffly, gives voice to this concern about unfettered deference to unwritten agency policy.”[xii] Justice Cordy begins by acknowledging two stark realities: the increasing need for good Massachusetts foster homes in light of DCF’s growing caseload, and “the highly publicized tragedies of the last two years regarding children under the supervision of the department in foster homes,” including a recent horrific case in the western region where the Magazus reside.[xiii] He also reiterates the uncontested evidence demonstrating “that in every respect (but for one) [the Magazus] were ideal foster and preadoptive candidates.”[xiv] In light of the department’s woeful record of investigating recent notorious cases of foster placements, where the warning signs of danger were writ large, Justice Cordy wrote that one is “left to wonder . . . whether the high standards and intensive assessment and scrutiny applied to the plaintiffs is the exception rather than the norm,” or “whether the real problem in this case was not so much the department’s concern for child safety, but rather a disagreement with the plaintiff’s beliefs regarding the upbringing of their children.”[xv] He queries whether, whatever the unwritten licensing standard actually is, it will be uniformly applied.[xvi] If an agency may impose significant burdens on individuals based on unwritten policies, the concurrence suggests, meaningful judicial review of the conduct of State bureaucracies is all but eviscerated.
The Paternalistic State
A second reason for concern in Magazu is the Court’s reliance in the parens patriae doctrine to justify burdening the Magazus’ constitutional rights. The doctrine of parens patriae endows the State with inherent authority to protect the vulnerable, particularly children, from harm. See, e.g., Petition of Catholic Charitable Bureau of the Archdiocese of Boston, Inc., to Dispense with Consent to Adoption.[xvii] Massachusetts appellate courts have invoked the doctrine in countless child-related cases.
Parens patriae, however, like its kindred “best interests of the child” standard, is a doctrine increasingly criticized as inchoate and infantilizing.[xviii] Recently, in Guardianship of L.H.,[xix] a case involving substituted judgment for an incompetent adult, Judge Agnes (dissenting) implored courts to “be cautious and critical of signs of paternalism legitimized by the parens patriae doctrine, where State actors purport to have an absolute understanding of what is in the best interests of an individual, whose liberty, dignity and privacy are at issue, and whose voice is muted by the swift and overriding authority of court-appointed professionals.”[xx] Judge Agnes’ dissent is particularly cautionary for Magazu, where DCF presented no hard data on actual or prognostic harm, where the prospective foster parents pledged to abide by DCF regulations concerning the discipline of children placed in their care, and where their credentials were otherwise stellar.
Of course, the Magazus are not the only parents ensnared here by parens patriae. The decision summarily disqualifies an entire class of people whose religious convictions lead them to physically discipline their children from even becoming foster and preadoptive parents. Regardless of one’s views on the corporal punishment of children, the use of parens patriae in Magazu to preclude any foster child from finding love and care in a loving family invites speculation about just what the limits of parens patriae, if any, may possibly be.
Magazu closes the door to foster parentage to the Magazus and all those similarly situated. How widely it opens the door to bureaucratic over-reach will be tested in the line of cases that follow.
Sandra E. Lundy is an appellate and domestic relations litigator at Tarlow, Breed, Hart & Rodgers, P.C., Boston. She is Board Member of the Women’s Bar Association and a former member of the BBA Family Law Section Council. Attorney Lundy received her J.D. from Yale Law School and her Ph.D. from Columbia University.
[i] 473 Mass. 430 (2016).
[ii] Id. at 433.
[iii] See 110 Code Mass. Regs. §§ 7.104 (1) (q) and 7.111(3).
[iv] 473 Mass at 440-441.
[v] 406 U.S. 205 (1972).
[vi] 418 Mass. 316, 321-323 (1944).
[vii] 473 Mass at 445-446. See also 418 Mass at 321-323.
[viii] See, e.g., G. L. c. 30A, §§ 2-6.
[ix] 451 Mass. 786, 795 (2008).
[x] 383 Mass. 299, 312-313 (1981).
[xi] 472 Mass. 1 (2015); 430 Mass. 385 (1999).
[xii] 473 Mass. at 446-449 (Cordy, J., concurring).
[xiii] Id. at 448.
[xiv] Id. at 447..
[xv] Id. at 448.
[xvi] Id. at 448-449.
[xvii] 392 Mass. 738, 740-741 (1984).
[xviii] See, for example, Charlow, Awarding Custody: The Best Interests of the Child and Other Fictions, 5 Yale L. and Pol’y Rev. 267, 269-273 (1986), available at http://digitalcommons.law.yale.edu/ylpr/vol5/iss2/3.
[xix] 84 Mass. App. Ct. 711 (2014),
[xx] Id. at 734.
Attorneys who advise closely-held corporations face recurring ethical challenges when conflicts develop among owners and managers of the business. The Supreme Judicial Court recently issued a unanimous decision, Bryan Corp. v. Abrano, 474 Mass. 504 (June 14, 2016), http://scholar.google.com/scholar_case?case=10526802548823881243&hl=en&as_sdt=6&as_vis=1&oi=scholarr that provides much needed guidance to attorneys practicing in this area and that has broader implications for attorney-client relationships generally. The decision addresses, among other important ethical concerns, how to assess conflicts of interest and obtain informed consent, how to properly terminate a client relationship, to whom in a close corporation do attorneys owe a duty of loyalty, and under what circumstances, if any, are attorneys permitted to drop one client like a “hot potato” for another, presumably more lucrative, opportunity.
Law Firm Disqualified
In Abrano, a law firm was advising certain officials of Byran Corp., a closely held corporation, and representing the corporation in litigation against another company. The law firm did not have an agreement with the client limiting the scope of the engagement or addressing conflict or withdrawal situations. A dispute arose over the company’s compensation of its shareholders. The law firm advised one of the shareholders on the pay dispute, sent a demand letter to Bryan Corp. on behalf of a group of shareholders, and subsequently withdrew from its representation of Bryan Corp. in the pending litigation. The law firm terminated its representation of the company by sending a notice to a Bryan Corp. officer whom the law firm was representing in the pay dispute. When lawsuits erupted over the pay dispute, Bryan Corp. moved to disqualify its former law firm from representing adverse parties.
The SJC upheld the trial court’s order disqualifying the law firm. Notably, there was no finding of actual prejudice, nor were there any findings of fact supporting the order. The SJC’s holding rested on violations of both the common law duty of loyalty that attorneys owe clients and Massachusetts Rule of Professional Conduct 1.7, governing concurrent and successive representation of clients. The SJC reasoned that the compensation dispute with current shareholders created a potential conflict that made it improper for the corporation’s law firm to represent those individual shareholders as concurrent clients without first obtaining the company’s informed consent. By accepting the new representation without first obtaining such a waiver, the law firm breached its duty of loyalty to Bryan Corp. and violated the prohibition in Rule 1.7 against concurrent representation of clients whose interests are materially adverse. The decision also confirmed that disqualification can be a proper remedy for ethical violations even without a showing of actual prejudice.
The court also held that law firm’s termination of the client engagement was improper. Consent to terminate an engagement with an organizational must be given by an authorized representative of the organization who has no conflict of interest in the decision. Moreover, the development of the conflict between Bryan Corp. and certain shareholders did not, by itself, justify the firm’s withdrawal as counsel for the company in the pending but unrelated litigation.
The law firm argued that initially there was no adversity between the shareholders and the company and no showing of actual prejudice. The SJC rejected those arguments as overly narrow readings of Rule 1.7, which encompasses the duty to anticipate potential conflicts, and Rule 1.13, the comments to which instruct that when an organizational client’s interests may be or become adverse to those of a constituent, the lawyer should advise the constituent of the conflict or potential conflict of interest and that the lawyer cannot then represent the constituent. The law firm had a duty to use “reasonable measures” to ascertain whether an actual conflict of interest was likely to occur, and, in this case, the law firm “should have known” that the interests of their concurrent clients were likely to become adverse in the near future, given the structure of the small board, the compensation dispute, and prior advice the law firm had given the shareholders about likely conflicts occurring if the board membership changed.
Fulfilling the Duty of Loyalty
Abrano illuminates the breadth and depth of the duty of loyalty that Massachusetts attorneys owe their clients. To fulfill that duty, attorneys must maintain undivided loyalty to the client during the term of the engagement. The SJC explains that such undivided loyalty means taking no actions adverse to a current client and declining likely adverse representations without the client’s informed consent. The duty of loyalty also obligates attorneys to complete their engagements, unless the client relationship is terminated with informed consent by an unconflicted representative.
Abrano clarifies that attorneys representing corporate clients cannot also represent individual shareholders without the corporate client’s consent if it is reasonably foreseeable that a conflict will arise. Nor can attorneys accept the individual representation and then withdraw as corporate counsel when the conflict develops: “a firm may not undertake representation of a new client where the firm can reasonably anticipate that a conflict will develop with an existing client, and then choose between the two clients when the conflict materializes.”
Abrano puts the burden on attorneys to assess the likelihood of a conflict when considering concurrent representation. Attorneys must undertake “reasonable measures” to anticipate conflicts and will be held to professional negligence standards in doing so. Precisely what measures are reasonable under different circumstances is unclear, and Abrano gives no further guidance beyond the facts specific to that case.
Hot Potato Doctrine Not Adopted
The SJC expressly declined to decide whether to adopt the so-called Hot Potato doctrine, which limits a firm’s ability to drop a client “like a hot potato” so that it may accept or continue representation of another client in a matter adverse to the first client. The SJC found that the duty of loyalty and professional rules were sufficiently broad to address the situation in Abrano, where the law firm started a new, potentially adverse engagement before terminating the existing client relationship. What is left unanswered is whether an attorney may terminate a client relationship and shortly afterwards engage a new client adverse to the former client. Is the Hot Potato doctrine needed to regulate such situations where the matters are unrelated, or is Rule 1.9 sufficient?
Abrano highlights the importance of carefully crafted engagement letters to avoid ethical as well as practical problems in the attorney-client relationship. An engagement letter should (i) identify who is the client, (ii) explain what will happen if a potential conflict arises among concurrent clients, including which client (if any) the attorney will continue to represent after the conflict arises, (iii) limit the scope of engagement; (iv) explain how the engagement may terminate before its completion, and (v) discuss business concerns, including representation of competitors or other adverse parties on unrelated matters. Done correctly, engagement letters should encourage ethical conduct, avoid misunderstandings, and simplify decision-making for attorneys and clients.
The Abrano decision brings much needed guidance for attorneys representing closely-held businesses and for all attorneys facing questions about how to begin and end client relationships properly. Several questions remain unanswered, including whether the SJC might apply the Hot Potato doctrine to situations where attorneys end one client relationship for the purpose of engaging a new client adverse to the former client. For now, what is clear from Abrano is that Massachusetts attorneys must be mindful of and responsibly fulfill their duty of loyalty and professional conduct obligations when commencing and terminating client relationships.
Paul Lannon is a litigation partner at Holland & Knight LLP and Co-Chair of the Ethics Committee of the Boston Bar Association.
Jeffrey D. Woolf is an Assistant General Counsel to the Board of Bar Overseers and is a member of the BBA Ethics Committee.
Verdrager v. Mintz Levin: The SJC Establishes Standards for Protected Self-Help Discovery in Aid of Anti-Discrimination Claims in MassachusettsPosted: August 24, 2016
In Verdrager v. Mintz Levin, 474 Mass. 382 (2016), the Supreme Judicial Court answered a question of first impression under Massachusetts law: Do the anti-retaliation provisions of state anti-discrimination law protect an employee who accesses her employer’s documents to support her employment discrimination claim? The SJC held that, under certain circumstances, such activity may be “protected,” thereby precluding an employer from taking any adverse employment action based on that activity. The decision examined the interplay between “self-help discovery,” or searches of employer materials outside the formal litigation discovery process, and the protections of the Commonwealth’s chief anti-bias statute, G.L. c. 151B, which bars retaliation against plaintiffs who engage in “protected activity.” G.L. c. 151B, §4(4). The SJC articulated the standards to be applied in determining whether employee acts of self-help discovery are protected, and specified limits on that protection.
Although this was a question of first impression in Massachusetts, in deciding that “self-help” discovery in a c. 151B case may be protected activity, the Court was not writing on a blank slate. Rather, its decision drew upon the sizeable case law on this issue that courts around the country have developed. Indeed, the multi-factor test for protected activity that the SJC has now adopted was expressly derived from a leading New Jersey case, Quinlan v. Curtiss-Wright Corp., 8 A.3d 209, 204 N.J. 239 (2010). It is likely that Massachusetts courts will look to decisions from other jurisdictions in applying the new Massachusetts standards.
Consistently with the courts that have confronted this issue and its own jurisprudence on protected activity under c. 151B, see, e.g., Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107, 121 (2000), the SJC in Verdrager held that self-help discovery “may in certain circumstances constitute protected activity under the statute, but only if the employee’s actions are reasonable in the totality of the circumstances.” But the SJC placed an important limit on this holding, namely that only documents that would be subject to formal discovery may be subject to protected self-help discovery, although that can include privileged documents. Finally, the Court noted that the determination whether the self-help discovery at issue was reasonable is to be made as a matter of law by the court, not by the jury.
Whether an employee’s self-help discovery was reasonable requires a fact-based determination. The SJC held that, “without limiting the considerations that additionally may be relevant in individual cases, the seven nuanced factors in Quinlan should be taken into account in any such analysis.” The Quinlan factors as adopted by the SJC are: (1) “how the employee came to have possession of, or access to, the document;” (2) a balancing of the “‘relevance’ of the seized documents to the employee’s legal action against the disruption caused by the seizure ‘to the employer’s ordinary business;”’ (3) “the strength of the employee’s expressed reason for copying the document rather than, for example, simply describing it or identifying its existence to counsel so that it might be requested in discovery;” (4) what the employee did with the document, or who the employee showed it to; (5) “the nature and content of the particular document in order to weigh the strength of the employer’s interest in keeping the document confidential;” (6) “whether there is a clearly identified company policy on privacy or confidentiality that the employee’s disclosure has violated” and “whether the employer has routinely enforced that policy;” and (7) “the broad remedial purposes the Legislature has advanced through . . . G.L. 151B” and “the decision’s effect on ‘the balance of legitimate rights of both employers and employees.’” The SJC, again adopting the Quinlan approach, noted that this last factor is “‘a supplement’ to the other factors, and plays a decisive role only in the ‘close case’ in which it would be appropriate for these broader considerations to ‘tip the balance.’”
Of particular note for lawyers, the SJC held that self-help discovery protections apply equally to attorney-employees, such as the Verdrager plaintiff, and to documents that may be attorney-client privileged. The SJC focused on the importance of ensuring that attorney-employees have the same opportunity as other employees to show documents to their own lawyers in order to obtain legal advice.
Verdrager clearly is a victory for employees’ rights in that it recognizes that employees who engage in self-help discovery in support of discrimination claims may be protected from adverse employment action. The decision, however, sounded several cautionary notes. First, the SJC limited its holding, and the application of the Quinlan factors, to claims under G.L. c. 151B, expressing no opinion on self-help discovery unrelated to such claims. Second, because the decision protects only self-help discovery found to be “reasonable in the totality of the circumstances,” the SJC warned that employees who engage in self-help discovery “even under the best of circumstances . . . run a significant risk that the conduct in which they engage will not be found . . . [ultimately] to fall within the protections of the statute.”
Finally, the SJC envisioned that, in deciding whether self-help discovery in a particular case was reasonable, a court will separately analyze each document or type of document accessed. As the SJC stated, “[t]he application of this test in particular cases may well result in determinations that certain acts of self-help discovery by the same employee are reasonable, while others are not.” In such a case “the resolution of the claim of retaliation likely would entail a determination whether the employee’s unreasonable and unprotected acts, standing alone, would have induced [the employer] to make the same [adverse employment] decision.”
In sum, Verdrager now provides protection for reasonable acts of employee self-help discovery. Employers will need to proceed very cautiously before taking adverse action against employees who acquire internal documents, even confidential ones, in the course of pursuing discrimination claims. But discrimination plaintiffs, too, will need to consider carefully the factors articulated by the Court, and to judge carefully what acts of self-discovery will survive the future application of what we can now cal the seven-factor Verdrager test.
Martin J. Newhouse, President of the New England Legal Foundation, is a member of the SJC Clients’ Security Board and BBA Ethics Committee.
Ellen J. Messing is a partner in the Boston firm of Messing, Rudavsky & Weliky, P.C., which concentrates its practice in representing employees in labor and employment litigation, including wrongful termination, discrimination, contract, sexual harassment, and public employee matters.
The state’s responsibility to confront climate change is now the subject of Massachusetts case law. In a landmark decision interpreting the state’s Global Warming Solutions Act (“GWSA”), Kain v. Department of Environmental Protection, 474 Mass. 278 (2016), the Supreme Judicial Court ruled that the Department of Environmental Protection (“DEP”) must impose mandatory “volumetric limits” on multiple sources of greenhouse gas emissions – meaning limits on the actual amount of greenhouse gases emitted by those sources – and that those limits must decline on an annual basis. The decision could have far-reaching implications for how the state regulates emissions in many sectors of the economy, with the SJC warning that the “act makes plain that the Commonwealth must reduce emissions and, in doing so, may, in some instances, elevate environmental goals over other considerations.” 474 Mass. at 292.
The GWSA was enacted in 2008, against the backdrop of what the SJC characterized as the “emerging consensus … that climate change is attributable to increased emissions, … [and] that national and international efforts to reduce those emissions are inadequate.” 474 Mass. at 281. Among other provisions, the GWSA required DEP to maintain an inventory of greenhouse gas (“GHG”) emissions in the state and to determine the statewide GHG emissions level as of 1990.
The GWSA also required the state to adopt two types of declining GHG emission limits. One relates to total emissions from all sources, while the other relates to individual sources. First, the Executive Office of Energy and Environmental Affairs (the “Secretary”) was required to adopt limits on the total amount of GHG emissions from all sources for 2020, 2030, 2040 and 2050, with the 2050 limit reducing overall GHG emissions in the Commonwealth by 80 percent from the 1990 level. Second, the GWSA required DEP to adopt annual declining limits on individual sources of GHG emissions, in addition to the end-of-decade limits, specifically by “establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions.” This latter provision, codified at chapter 21N, § 3(d), led to the controversy that was decided in Kain.
DEP agreed that the end-of-decade limits were legally binding caps for statewide GHG emissions. However, with regard to Section 3(d)’s “declining annual aggregate emission limits” for sources of GHG emissions, DEP took the position these were aspirational “targets,” not binding caps, citing the statute’s reference to “desired” levels. Alternatively, DEP contended that several existing regulatory programs fulfilled Section 3(d)’s requirements to limit sources of GHG emissions, and that the agency need not adopt new regulations to comply with the law.
When DEP failed to adopt any new regulations on sources of GHG emissions pursuant to Section 3(d), four teenagers, the Conservation Law Foundation, and the Mass Energy Consumers Alliance sued DEP to compel it to adopt binding caps on sources of GHG emissions that declined annually. (The teenagers, two from Boston and two from Wellesley, were among scores of youth who, concerned about the impact of climate change on their future, had unsuccessfully petitioned DEP to adopt new Section 3(d) rules in 2012.) On cross-motions for judgment on the pleadings, the Superior Court ruled in favor of DEP, on the grounds that the three regulatory schemes cited by DEP fulfilled Section 3(d)’s requirements. After granting direct appellate review, the SJC reversed.
The SJC Decision
At the outset, the SJC acknowledged that DEP has wide discretion in establishing the scope of its authority, but stated that deference to DEP’s interpretation of Section 3(d) “would tend to undermine the [GWSA]’s central purpose of reducing emissions in the Commonwealth.” Id. at 287.
The Court first rejected DEP’s argument that Section 3(d) required only aspirational “targets” for limiting sources of GHG emissions, not binding caps. The Court observed that when the GWSA referred to “limits” elsewhere in the statute, DEP conceded that “limits” referred to binding caps. The Court refused to give the word “limit” a different meaning with regard to the annual limits on sources of emissions in Section 3(d). 474 Mass. at 288.
The Court also pointedly said that “a regulation, by definition, is not aspirational” and expressed doubt that the Legislature would require an agency to promulgate regulations that were merely aspirational. Finally, while DEP had stressed that the term “desired level” necessarily implied that “limits” on emissions were aspirational, the Court disagreed. The Court held that, in the context of the statute’s goal of reducing emissions in the Commonwealth, the term “desired level” meant the level of emissions from a source or category of sources that would be “suitable” to achieve the statewide GHG emissions limits. 474 Mass. at 289.
The SJC next turned to the three regulatory schemes that DEP argued fulfilled Section 3(d)’s requirements to limit sources of GHG emissions, and held that none satisfied the statute’s mandate. The first regulatory scheme limits the rate of leakage of a powerful greenhouse gas from certain electrical switch gear, with the intent of gradually reducing the leakage rate from the equipment. The Court held that this regulatory scheme did not satisfy Section 3(d) because it established only a declining rate of emissions from sources, not a cap on the actual volume of emissions, and the amount of leaked emissions therefore could increase simply by the installation of additional equipment in a facility or in the state as a whole. 474 Mass. at 295.
As to the second regulatory scheme, the “low emission vehicle” (“LEV”) program, which also “regulates through the imposition of rates, rather than actual caps on emissions,” the SJC held it did not comply with Section 3(d)’s requirement that DEP promulgate declining volumetric emissions limits. 474 Mass. at 299. The LEV program regulates emissions based on the average emissions of each auto manufacturer’s fleet of cars. Thus, like the regulations regarding switch gear emissions, although the average rate of emissions from a vehicle fleet may decline, the total number of vehicles on the road from a manufacturer’s fleet may increase and thus the volume of emissions from those sources may increase as well. Id.
Here and elsewhere, DEP argued that it should be free to use a rate rate-based mechanism rather than a volume-based cap on emissions, because using a cap would potentially limit the actual number of emission sources. Disagreeing, the Court said the GWSA required that new or additional GHG sources must comply with a regulatory scheme that required the reduction of the actual volume of emissions. 474 Mass. at 295.
Finally, the SJC turned to the Regional Greenhouse Gas Initiative (“RGGI”), a regional cap and trade system for carbon dioxide emitted by power plants, pursuant to which the overall cap on emissions from plants in Massachusetts and eight other states is reduced by 2.5 percent each year. Although RGGI imposes an overall cap on carbon dioxide emissions that declines annually through 2020, the SJC held that it nevertheless did not fulfill Section 3(d)’s requirements. The Court observed that RGGI was established by a separate statute, and that the GWSA elsewhere created a separate process by which emission levels associated with the electric sector are set. Id. at 297. These factors, said the Court, indicated the Legislature did not intend for the RGGI program to be part of the Section 3(d) regulations. In addition, the Court noted that under RGGI, a Massachusetts power plant could purchase allowances from another state that would permit the Massachusetts plant to increase emissions. Accordingly, RGGI does not actually require carbon dioxide emissions from power plants located in the Commonwealth to decrease annually.
In ruling that none of the three programs proffered by DEP satisfies Section 3(d)’s requirements, the SJC acknowledged that these schemes may play important roles in achieving greenhouse gas reductions. But the SJC also repeatedly said that, because these regulatory schemes do not actually require annual decreases in the volume of GHG emissions, they simply do not require what Section 3(d) mandates.
The full import of Kain remains to be seen. At a minimum, it requires DEP to establish annual declining volumetric limits for those sources, or categories of sources, of emissions in the GHG inventory, which will help the state achieve its 2020 and 2050 limits. Designing programs to achieve those limits is another matter. Moreover, the Section 3(d) regulations were supposed to take effect no later than January 1, 2013, and to sunset on December 31, 2020. The work at hand now concerns what can best be achieved in the time that remains.
Dylan Sanders practices environmental law at Sugarman, Rogers, Barshak & Cohen, P.C., and, together with his colleague Phelps Turner, represented the four teenage plaintiffs in the Kain case.
Attorneys can initiate post-verdict contact with jurors without court permission or supervision, in the wake of the Supreme Judicial Court’s holding in Commonwealth v. Moore, 474 Mass. 541 (2016). Nearly one year after the revised Massachusetts Rules of Professional Conduct went into effect on July 1, 2015, the SJC confirmed that Rule 3.5(c) worked a change in practice, allowing attorneys to communicate with jurors without requesting permission from the trial judge. Still, in other important areas, some constraints on juror contact remain.
Before the recent revisions to the Rules of Professional Conduct, attorneys in Massachusetts could initiate contact with jurors only with the permission of the trial judge, and then only on some suggestion that the jury had improperly considered extraneous material. See Commonwealth v. Fidler, 377 Mass. 192 (1979). In 2013, the SJC asked the Standing Advisory Committee on the Rules of Professional Conduct to re-examine the Massachusetts rules in light of changes to the ABA’s Model Rules. The committee considered two proposed versions of Rule 3.5(c), one that allowed post-discharge juror contact and the other that affirmed Fidler’s prohibition on juror contact without the permission and supervision of the court. By unanimous vote, the committee recommended the version liberalizing juror contact. Following a comment period and argument, the SJC adopted the rule. Effective July 1, 2015, attorneys in Massachusetts may contact jurors post-verdict subject to three exceptions: (1) if the communication was “prohibited by law or court order”; (2) if the juror made known his desire not to communicate with the attorney, either directly or indirectly; or, (3) if the communication involved “misrepresentation, coercion, duress or harassment.”
New Rule 3.5(c) was soon tested. In mid-July 2015, appellate counsel to Dwayne Moore sought to communicate with the jurors who had convicted Moore of murder in 2012. On July 14, 2015, two weeks after the effective date of revised Rule 3.5(c) and while Moore’s appeal was pending, defense counsel sent the Commonwealth the letter he planned to send the jurors. The proposed letter asked whether the jurors had been exposed to any extraneous information during the trial and deliberations, including information about the mass shooting at Sandy Hook Elementary School. Having received no response from the Commonwealth, defense counsel sent the letter to the jurors one week later. That same day, the Commonwealth’s attorney e-mailed defense counsel, notifying him that the Commonwealth would file a motion to prohibit juror contact, which it viewed as still impermissible under the revised rule.
The trial judge heard argument on the Commonwealth’s motion and reported five questions to the Appeals Court (which were then transferred to the SJC):
- In revising Rule 3.5 of the Massachusetts Rules of Professional Conduct to permit attorney originated communications with discharged jurors, did the Supreme Judicial Court implicitly overrule the prohibition against attorney originated communications with jurors as set forth in Commonwealth v. Fidler, 377 Mass. 192, 203-204, 385 N.E.2d 513 (1979)?
- In generally adopting the American Bar Association’s Model Rule 3.5 containing the language ‘prohibited by law,’ did the Supreme Judicial Court intend Commonwealth v. Fidler to be continuing precedent?
- If the answer to question two is ‘no,’ then what types of contact with discharged jurors by an attorney, if any, are ‘prohibited by law’ under Rule 3.5(c)(1)?
- If the answer to question one is ‘yes,’ and the answer to question two is ‘no,’ does revised Rule 3.5 permit attorneys to communicate with jurors who were discharged prior to July 1, 2015?
- If the answer to question four is ‘yes,’ in light of Commonwealth v. Fidler, are attorneys required to seek approval from the court prior to contacting jurors?
Commonwealth v. Moore, SUCR2011-10023 (July 27, 2015), slip op. at 13-14.
On the first question, the Court said that, in “adopting rule 3.5 (c), we effectively overruled our rule, first stated in Fidler, that prohibited attorney-initiated, postverdict contact of and communications with jurors free from court oversight.” Commonwealth v. Moore, 474 Mass. 541, 547 (2016). Second, the Court held that Fidler continues as precedent to the extent that, like Fidler, Rule 3.5(c) prohibits inquiries into the jury’s deliberations. More specifically, “prohibited contact and communication include those that violate common-law principles, such as inquiries into the substance of jury deliberations, and communications that violate statutory law, other court rules, or specific court orders.” Id. at 549. Finally, the Court held that Rule 3.5(c) applies to attorneys seeking to contact jurors discharged before July 1, 2015, the rule’s effective date, if the case was pending on appeal on July 1, 2015, or if the appeal period had not yet run. Id. at 551. If either of those conditions is met, no court permission is required to contact jurors discharged before July 1, 2015. Id.
Beyond simply answering the trial court’s questions, the SJC sought to provide procedural guidelines to counsel. Most notably, the Court required that a lawyer provide opposing counsel with five business days’ notice of the lawyer’s intent to contact the jurors. That notice should specify the proposed manner of communication and the substance of the inquiry, including, “where applicable, a copy of any letter or other form of written communication the attorney intends to send.” Id. at 551-552. The Court stated that the preferred method of juror contact is by written letter, which should include a statement that the juror may decline to respond to such communication. While the Court observed that opposing counsel may seek relief if the proposed communication appears improper, the Court sought to tamp down routine challenges to proposed communications, underscoring that “[o]ur mention of the availability of judicial intervention and relief is not intended to serve as an invitation to counsel to seek it as a matter of course.” Id. at 552.
Thus, lawyers in Massachusetts may now contact jurors without the permission or supervision of the trial court, including jurors discharged prior to July 1, 2015, if the direct appeal was then pending or the appeals period had not yet run. But before doing so, counsel must first provide opposing counsel notice of their intent to contact the jurors, and opposing counsel has an opportunity to move the court for relief. When counsel does make contact, he or she cannot inquire about the substance of the jury’s deliberations; that subject continues to be off-limits. Moore provided preliminary answers and guidance concerning the implementation of Rule 3.5(c). Whether there will be additional litigation surrounding lawyer-initiated postverdict contact with jurors remains to be seen.
Neil Austin is a partner in the litigation department of Foley Hoag LLP, where he specializes in commercial litigation and government investigations.
Caroline Donovan is an associate in the Litigation Department at Foley Hoag, where she maintains a practice in complex civil litigations and investigations.