Massachusetts Appellate Courts Must Do More To Protect Young Black People from Unreasonable Police Intrusion

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  by Eva Jellison

   Viewpoint

No Massachusetts case has explicitly incorporated the combined effects of the race and age of a juvenile in its legal analysis. There are some cases that recognize the impact of a defendant’s youth and others that recognize the effects of societal racism. See, e.g., Commonwealth v. Perez, 480 Mass. 562 (2018) (non-homicide youth sentencing); Commonwealth v. Warren, 475 Mass. 530 (2016) (inference to be drawn from the flight of a Black man from police in an urban area). But there is undoubtedly something lost in not recognizing that youth and race can combine in a manner not adequately addressed by separate analyses. Recently, in Commonwealth v. Evelyn, 485 Mass. 691 (2020), the SJC missed an opportunity to incorporate this compound effect into its Article 14 search and seizure jurisprudence.  

Article 14 of the Massachusetts declaration of rights provides protection against unreasonable search and seizure: “Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions.” The SJC has repeatedly interpreted Article 14 to be more protective than the analogous Fourth Amendment to the U.S. Constitution. See, e.g., Evelyn, 485 Mass. at 697; Commonwealth v. Stoute, 422 Mass. 782 (1996) (point of seizure). Seizure occurs when a reasonable person would believe that she is not free to leave a police interaction. Evelyn, 485 Mass. 696. The police may only legally seize someone whom they have reasonable suspicion to believe has committed, is committing, or is about to commit a crime. Id. at 704.

In Evelyn, the SJC declined to incorporate the combination of race and youth into its Article 14 jurisprudence, despite extending its recognition of the relevance of race and youth separately. Tykorie Evelyn was a seventeen-year-old boy at the time he was seized and pat frisked by Boston police officers. He was about a half mile away from a shooting that had occurred thirteen minutes earlier, he refused to engage with officers, and he made three movements that the officers identified as consistent with gun possession. Id. at 694–95. He made two arguments that relied on the combination of his youth and race: (1) that consideration of whether someone would feel free to leave must take into account the combination of the defendant’s age and race, and (2) that turning away from officers (labelled “blading”) should have been viewed as a nervous behavior informed by Tykorie’s race and youth, rather than relied upon as a characteristic of an armed gunman. An amicus curiae brief submitted by the Charles Hamilton Houston Institute for Race & Justice of Harvard Law School and the NAACP Legal Defense & Education Fund also alerted the Court to these issues.

As to Tykorie’s first argument, the SJC incorporated youth, drawing from J.D.B. v. North Carolina, 564 U.S. 261 (2011), which held that youth was relevant to the custody analysis under Miranda v. Arizona, 384 U.S. 436 (1966). The SJC noted that J.D.B. addressed an inquiry similar to the point-of-seizure analysis: whether “an individual has been compelled to interact with the police.” Evelyn, 485 Mass. at 698.

But the SJC declined to allow Tykorie’s blackness to add to the analysis. Id. at 700. More specifically, the SJC “agree[d] that the troubling past and present of policing and race are likely to inform how African-Americans and members of other racial minorities interpret police encounters.” Id. at 701. But the Court concluded that including race in the seizure analysis intruded upon the ability to “maintain an objective standard so that officers can determine in advance whether the conduct contemplated will implicate the Fourth Amendment or art. 14.” Id. at 702. In so doing, the SJC “attempt[ed] to focus attention on the issue of race, while not establishing bright-line rules that potentially could do more harm than good.” Id. at 703. It appears that the harm the SJC sought to avoid was imputing a particular set of life experiences and beliefs formed from those experiences to an individual with a different set of experiences and beliefs. Id. at 702–03, quoting United States v. Easley, 911 F.3d 1074, 1081–82 (10th Cir. 2018) (noting that members of racial categories do not all share the same experiences and beliefs).

This reasoning is unsatisfying. First, it appears to conflict with the Court’s prior reasoning in Warren, which it extended in Evelyn. In Warren, the SJC held, without any invocation of federal law, that any type of “nervous or evasive behavior” by a Black person in an urban area must be “significantly discount[ed].” Evelyn, 485 Mass. at 709. This is because “a long history of race-based policing likely will remain imprinted on the group and individual consciousness of African-Americans for the foreseeable future.” Id. at 708. Rather than looking to the Fourth Amendment seizure analysis to decide whether to incorporate race into the Article 14 seizure analysis, it would have been more consistent for the SJC to apply the analysis of race that it had previously adopted in Warren and maintained in Evelyn.

Second, by adopting age as a factor, but not race, the SJC missed an opportunity to “ensure that the justice provided to African-Americans is the same that is provided to white Americans.” Ralph D. Gants, et al., Letter from the Seven Justices of the Supreme Judicial Court (June 3, 2020). Primarily,

[e]xperience suggests that a child’s race would have as much impact on a child’s perception of whether he was free to leave as would his age. Throughout American history, blacks have had a tenuous relationship with police. In every critical era—slavery, Jim Crow, lynching, and the contemporary era of mass incarceration—blacks have perceived police to be proponents of discrimination and subordination through violence and intimidation. Today, it is difficult to imagine any black person who is immune from the persistent national coverage of police-on-black killings.

Kristin Henning, THE REASONABLE BLACK CHILD: RACE, ADOLESCENCE, AND THE FOURTH AMENDMENT, 67 Am. Univ. L. Rev.  1513, 1530 (2018). And, because of this history, “Black families have long been proactive in transmitting norms on dealing with the police to their children.” Id. at 1531. Further, children, and specifically Black children, are policed both in their schools and on their streets. Id. “These experiences, combined with developmental features of adolescence, leave black youth particularly vulnerable to the psychological pressures of police presence. As such, black youth are even less likely than other youth and adults to believe they are free to leave and decline police contact.” Id. at 1532–33.

Indeed, Black and brown children live in a different Massachusetts than white children. Data provided to CPCS by the Department of Youth Services indicated that, as of April 23, 2021, eighty-two percent of the children detained, confined, or committed did not identify as white. In the last ten years, Boston Police Department data indicate disproportionate stops of Black men, Evelyn, 485 Mass. at 700 n. 6 & 7, a trend which continued even during the unprecedented COVID-19 pandemic during which 30% fewer stops occurred than the previous year. Tori Bedford, While Boston Police Street Stops Decrease, Black People Are Still Stopped The Most, GBH News (April 18, 2021). A recent report about the City of New Bedford revealed that “[p]olice are clearly targeting young Black males[.]” We are the Prey; Racial Profiling and Policing of Youth in New Bedford, Citizens for Juvenile Justice (April 2021). Further, “[i]n Massachusetts, black female students are roughly 3.9 times more likely to be disciplined than their white counterparts.” Protecting Girls of Color from the School-To-Prison Pipeline, Appleseed Network (2019) (analyzing data from the 2015-16 school year). And the data from the 2018-19 school year evinces racial disparity in school discipline across communities with large populations of Black and brown children. These data indicate that race should be broadly considered in criminal law analyses.  

Further, ignoring race but accepting age as relevant to the seizure analysis will only exacerbate the racial disparities in the juvenile system. People, including police officers, see Black children as older than they actually are. Phillip Atiba Goff, et al., The Essence of Innocence: Consequences of Dehumanizing Black Children, 106(4) Journal of Personality and Social Psychology 526, 532 (2014) (4.53 years older for Black boys suspected of felonies). This can mean that, unlike children of different races, Black children would lose the protection afforded by Evelyn well before they become adults and well before their white counterparts, perhaps as young as 13 or 14. Id. Evelyn is only helpful in reflecting young people’s developmental status when officers know or should know that these children are under the age of eighteen. Evelyn, 485 Mass. at 700 (not considering Tykorie’s age because he was six feet tall and his features were obscured by clothing and darkness).

The SJC’s rejection of Tykorie’s second argument was implicit. Nowhere in its “Evidence of a Firearm” section does the SJC mention the word race. Evelyn, 485 Mass. at 705–08. But the opportunity was there. At oral argument, Justice Kafker queried whether the police would have been able to stop a 75-year-old man, or a 75-year-old woman in the same circumstances. Implicit in Justice Kafker’s question is the idea that older people and women are less likely to be involved in crime, or at least less likely to be in possession of a firearm, and that assigning criminality to a seemingly innocent act might therefore be unreasonable as applied to an old man or woman.

Justice Kafker was on to something – but as applied to race in addition to age and gender. Social psychologists have observed that Black boys are perceived as less innocent than their white and Latino counterparts. See generally Atiba Goff, supra. Thus, when an officer sees the actions of a Black boy (or someone he perceives to be a Black boy), the officer could be seeing criminality simply because the boy is young and Black. This is especially important in the reasonable suspicion analysis, because officers frequently testify that things that a white woman in her thirties does all the time – clutching an object in her pocket on a cold day, adjusting her pants, or checking to see if her cellphone, which may be too big to fit in her pocket, is securely in her waistband – are an indication of firearm possession.

“[S]urely a stop based on race is an unreasonable seizure under art. 14,” Commonwealth v. Long, 485 Mass. 711, 754 (2020) (Budd, J., concurring), and the SJC is right to be concerned about how to apply an objective standard. It is very difficult to assess how an officer’s implicit (or explicit) bias may have operated in any given situation. But that does not mean that the appellate courts cannot or should not help to ensure that Black children are not stopped, grabbed, and harmed because of that bias. Warren and Evelyn provide a helpful framework for incorporating societal realities about race into legal analysis.

Additional solutions also exist. A recent dissent by Justice Milkey suggested that courts could increase the burden on the Commonwealth and police officers to demonstrate that the conclusions from their observations have robust non-race-based underpinnings. Commonwealth v. Karen K., 99 Mass. App. Ct. 216, 233 n.16 (2021) (Milkey, J., dissenting). For example, the Commonwealth could provide evidence of training based on scientific methodology, and not the mere recitation of talismanic words.  Or the Commonwealth could provide an “empirical basis for judging the accuracy of [the officer’s] predictive abilities,” such as information about the percentage of persons stopped on suspicion of firearm possession who actually possessed a firearm. Id.

The SJC may have missed an opportunity in Evelyn, but the door remains open to move away from analyses that disproportionately burden Black children and strive toward more equal justice.

This article is dedicated to the late Chief Justice Ralph Gants for teaching Attorney Jellison to seek justice and treat people well.  

Eva Jellison (she/her) is a criminal defense attorney and partner at Wood & Nathanson, LLP.  She primarily represents adults and juveniles in appellate, post-conviction and post-adjudication matters.


The Supreme Judicial Court Clarifies For Whom The Order Tolled

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  by Emily C. Shanahan

   Case Focus

On September 3, 2021, the Supreme Judicial Court (“SJC”) issued its decision in Shaw’s Supermarkets, Inc. v. Melendez, 488 Mass. 338 (2021) (“Melendez”). In Melendez, the SJC considered the scope of the tolling provision set forth in its Third Updated Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 (Coronavirus) Pandemic, No. OE-144 (June 24, 2020) (“Third Emergency Order”). The parties disputed whether the Third Emergency Order tolled only those civil statutes of limitations that expired during the period March 17, 2020, through June 30, 2020, or all civil statutes of limitations, irrespective of when they expired. The SJC held that the use of the word “all” in the Third Emergency Order encompassed all civil statutes of limitations, not only those expiring during the period between March 17, 2020, and June 30, 2020. In short, “‘[a]ll’ means all.” Melendez, 488 Mass. at 342. As a result, the SJC affirmed the denial of the defendant’s motion to dismiss because the plaintiff’s complaint was timely filed.

Background

The complaint in Melendez alleges that on September 3, 2017, the plaintiff, Margarita Melendez, suffered injuries arising from an accident caused by an employee of the defendant, Shaw’s Supermarkets, Inc., in one of the defendant’s grocery stores. The plaintiff filed an action for negligence in the District Court on September 24, 2020. The defendant moved to dismiss the complaint, arguing that it was untimely under the three year statute of limitations applicable to negligence claims, Mass. Gen. Laws ch. 260, § 2A. The District Court denied the motion to dismiss because the complaint was timely filed under the tolling provision of the Third Emergency Order. The defendant sought emergency relief under the SJC’s superintendence authority pursuant to Mass. Gen. Laws ch. 211, § 3. The single justice reserved and reported the petition to the full SJC.

In its brief to the SJC, the defendant argued that the language of the Third Emergency Order was clear and unambiguous: It tolled civil statutes of limitations set to expire between March 17, 2020, and June 30, 2020. According to the defendant, the SJC did not intend to add 106 days to all civil statutes of limitations, including those set to expire after June 30, 2020. In contrast, the plaintiff argued that the plain meaning of the language of the Third Emergency Order was that all civil statutes of limitations were tolled, irrespective of when the statute of limitations was set to expire.

SJC’s Analysis

Like the parties, the SJC began its analysis with the language of the Third Emergency Order: “[a]ll civil statutes of limitations were tolled by Prior SJC Orders from March 17, 2020, through June 30, 2020.” The SJC agreed with the defendant to the extent the SJC also concluded that the phrase “[a]ll civil statutes of limitations” was “clear and unambiguous.” Melendez, 488 Mass. at 342. Relying on dictionary definitions of the word “all,” the SJC explained that the plain meaning of the word “all” in the Third Emergency Order “encompasse[d] each and every civil statute of limitations, not just those where the statutory period of limitation expired between March 17, 2020, and June 30, 2020.” Id.

As further support for its interpretation, the SJC contrasted the language of the Third Emergency Order relating to the tolling of civil statutes of limitations with language in other provisions of the order which expressly stated that only those deadlines expiring between March 17, 2020, and June 30, 2020, were tolled. That is, the SJC observed that it knew how to use language to limit the effect of its tolling orders in the manner advanced by the defendant. The use of different language with respect to civil statutes of limitations demonstrated the SJC’s intent that the tolling provision was not limited to civil statutes of limitations expiring during the period between March 17, 2020, and June 30, 2020. Moreover, the SJC rejected the proposition that the example in the Third Emergency Order illustrating the application of the tolling provision demonstrated an intent to limit the reach of the tolling order to statutes of limitations expiring during the relevant window.

In its conclusion, the SJC observed that “at least some of [the defendant’s] reasoning may be attributable to a misconception of the reference to the ‘statutes of limitations’” in the Third Emergency Order. Melendez, 488 Mass. at 345. The SJC sought to correct the misconception, explaining that “[a] statute of limitations does not refer to the date on which the cause of action expires, but, rather, to the period during which a legal proceeding may be initiated.” Id. (citation omitted). The SJC further noted that the term “toll” means “‘to stop the running of.’” Id. (citation omitted). To be consistent with the meaning of those terms, the SJC concluded that the language of the Third Emergency Order necessarily included “all causes of action for which the relevant limitations period ran for some period between, or through, those dates.” Id.

Practice Point

Going forward, practitioners will need to examine carefully how the decision in Melendez affects the calculation of the expiration of the statute of limitations in any given case. For causes of action which accrued on or before March 17, 2020, and for which the statute of limitations had not yet expired as of that date, an additional 106 days should be added to the limitations period, counting from March 17, 2020. For causes of action which accrued between March 17, 2020, and June 30, 2020, the number of days between the accrual date and June 30, 2020, should be added to the limitations period, counting from the date of accrual. Causes of action which accrued after June 30, 2020, do not benefit from any tolling under the Third Emergency Order because no part of the limitations period ran during the relevant period.

Looking Ahead – Other Issues On The Horizon

In Melendez, the SJC cited, but not did examine, the sources of its authority to issue the Third Emergency Order, including, among others, its rule making authority and superintendence authority under Mass. Gen. Laws ch. 211, § 3. In another appeal currently pending before the SJC, Podium Developer LLC v. Graycor Construction, Inc., SJC No. 13142, the Court has been asked to examine the scope of its superintendence authority under Mass. Gen. Laws ch. 211, § 3 with respect to the tolling of other statutory deadlines. In particular, the SJC granted direct appellate review to answer the reported question of whether the Court’s emergency orders tolled the statutory period for the filing of a Notice of Contract with the Registry of Deeds under Mass. Gen. Laws ch. 254, § 2, the Mechanics Lien Statute. The Superior Court answered that question in the affirmative, concluding that because the tolling orders did not “supersede” the statutory deadlines, they fell within the SJC’s superintendence authority. The defendant/appellant argues that the Superior Court erred by failing to consider the fundamental issue, namely, the SJC’s superintendence powers under Mass. Gen. Laws ch. 211, § 3 do not extend to matters lacking a “nexus” to the SJC’s superintendence of inferior courts or the administration of the judicial system. The defendant/appellant argues that because the Mechanics Lien Statute lacks the necessary nexus, the application of the SJC’s tolling orders to the deadlines set forth in the statute violates separation of powers. Oral argument is currently scheduled for December 6, 2021.

Emily C. Shanahan is a partner and chair of the litigation department at Tarlow, Breed, Hart & Rodgers, P.C. Ms. Shanahan is an experienced litigator, handling a broad range of complex business and commercial disputes, including contract disputes, partnership disputes, and real estate litigation. Ms. Shanahan has served on the steering committee of the BBA’s Business and Commercial Litigation Section.


SJC “Likes” Aspects of Facebook’s Work Product Argument

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by Bret Cohen, Jillian Hart, and Matthew Brown

Case Focus

The Supreme Judicial Court (“SJC”) recently issued its anticipated decision in Attorney General v. Facebook, Inc., 487 Mass. 109 (2021), addressing the extent to which the work product doctrine or the attorney-client privilege protects internal investigations from disclosure.

The decision affirmed in part and reversed in part a Superior Court decision (Attorney General v. Facebook, Inc., 2020 WL 742136 (Jan. 17, 2020) (Davis, J.)) that held that the work product doctrine did not apply to documents the Massachusetts Attorney General (“AG”) sought from social media giant Facebook, Inc.’s (“Facebook”) internal investigation into a data privacy breach.

The SJC’s decision provides an important reminder for companies to tread carefully and always consult with counsel before launching an internal investigation to understand what may be discoverable in future litigation. 

Facts and Background

After a widely publicized data breach incident involving one of its third-party applications (“apps”), Facebook undertook an internal investigation, led by outside counsel, to determine the extent to which the platform’s apps misused user data and to evaluate associated liability.  Facebook intended for the app developer investigation (“ADI”) to identify any other apps that misused user data and to assess Facebook’s potential liability from the incident.  Both in-house and outside counsel “designed, managed, and overs[aw]” the ADI and “devised and tailored the ADI’s methods, protocols, and strategies to address the specific risks posed by these legal challenges.”  Outside counsel also retained third-party technical experts and investigators to assist in the ADI.  

As a result of the data breach incident, the AG opened its own investigation into whether Facebook misrepresented the extent to which it protected or misused user data.  In accordance with its authority under M.G. L. c. 93A, the AG issued a series of civil investigative demands to Facebook.  Facebook complied in part, but refused on privilege grounds to honor six of the AG’s requests.  The first five requests sought information related to the identities of certain apps and app developers that Facebook identified and reviewed during its ADI.  The sixth request, in contrast, sought Facebook’s internal communications and correspondence regarding certain apps.

The AG filed a petition to compel compliance with its demands in the Superior Court’s Business Litigation Session.  The Superior Court sided with the AG, holding that the work product doctrine did not cover Facebook’s ADI and, even if it did, the AG made the required showing of a substantial need for the information that it could not obtain without undue hardship.  As to Facebook’s asserted attorney-client privilege, the Superior Court held that the privilege did not cover the information sought by the AG’s first five requests, and ordered the production of responsive documents.  Regarding the sixth request, however, the Superior Court held that it did seek the disclosure of potentially privileged material, and accordingly ordered Facebook to provide the AG with a detailed privilege log.

Facebook appealed and the SJC heard the case on direct appellate review.

Decision

The SJC affirmed in part and reversed in part the Superior Court’s decision. 

Work Product Doctrine:  Addressing the first five requests, the SJC held that the work product doctrine did apply, because Facebook conducted the ADI in anticipation of litigation.  The Court, however, carefully distinguished fact work product from opinion work product.  It held that as to documents constituting fact work product, the AG demonstrated substantial need and undue hardship requiring production.  At the same time, the SJC held that remand was necessary to determine whether any of the responsive documents that Facebook withheld constituted opinion work product.  The SJC held that, if any of the withheld documents constituted opinion work product, such documents are only “discoverable, if at all, in rare or extremely unusual circumstances.”  Facebook, 487 Mass. at 128 (internal quotations omitted).

Attorney Client Privilege: Addressing the sixth request, the SJC agreed with the Superior Court that to the extent Facebook objected on the basis of attorney-client privilege, Facebook must produce a detailed privilege log so that the AG could assess (and potentially contest) the privilege assertions.  The SJC reasoned that the request sought information dating back years before the ADI began, as well as communications that did not involve attorneys, both of which might fall outside the scope of the attorney-client privilege.  The SJC held that the attorney-client privilege did not cover the first five requests as they merely sought underlying facts rather than attorney-client communications.  In doing so, the SJC emphasized that “the attorney-client privilege only protects communications between attorneys and a client about factual information, not the facts themselves,” noting that “this distinction is important and somewhat collapsed by the advocacy in the instant case.” Facebook, 487 Mass. at 123.

Key Issues

In its decision, the SJC identified and discussed three important issues pertaining to employers contemplating or conducting internal investigations.

First, the SJC considered whether the work product doctrine applies to an internal investigation.  In the instant case, the SJC held that the work product doctrine applied to the ADI because: (1) documents were prepared; (2) by or for Facebook for its agents; and (3) in anticipation of litigation.  The SJC specifically found that, although Facebook had an ongoing compliance program, the ADI was “meaningfully distinct” from the compliance program, with its own distinct methodology focused on past violations, rather than improving ongoing operations in the normal course of business.  In short, the mere fact that the ADI also served Facebook’s business purposes did not mean that the work product doctrine was inapplicable.

Second, the SJC discussed whether the information sought by the AG constituted fact work product or opinion work product.  As the SJC stated, “the line between fact work product and opinion work product is not always clear.”  In this regard, the SJC noted that although Facebook made multiple public statements about the ADI and the investigatory process (which Facebook could not then claim to constitute opinion work product), any “undisclosed strategic decision-making by counsel, including the assessment of legal risk or liability [] revealed by the factual analysis” might qualify as opinion work product.    

Third, the SJC considered whether, in relation to fact work product, the party seeking disclosure established a substantial need for and undue hardship from denied access to the work product sufficient to warrant its discovery.  The SJC held that the AG met its burden by demonstrating both.  With respect to the AG’s substantial need, the SJC found that the app-related information sought was central to the statutorily authorized c. 93A investigation.  Likewise, with respect to the AG’s asserted undue hardship, the SJC distinguished the ADI from a routine internal investigation that “involved simply interviewing key employees and other witnesses or reviewing a manageable number of documents, tasks that can be easily replicated by third parties or government investigators.”  Here, the ADI was a years-long investigation involving a vast quantity of information and included analysis of millions of apps by hundreds of outside experts. Therefore, the SJC ruled that the enormous costs and time required to duplicate the ADI was sufficient to demonstrate undue hardship.

Implications

Although this area of law is far from settled, the Facebook decision provides helpful guidance for companies contemplating and conducting internal investigations.  Key guideposts include:

  • Engage counsel in advance of an internal investigation to discuss the objective and parameters of such investigation.
  • Any outside experts involved in the investigation should be retained by outside counsel and should be bound by confidentiality agreements.
  • Review what records and files the company develops in the regular course of business and be mindful that these records may be discoverable if not created in anticipation of litigation.

During the internal investigation, consider carefully what information and documents may be characterized as fact (versus opinion) work product and, therefore, may be discoverable.  As the SJC cautions, the line between the two is “not always clear” and, consequently, aspects of internal investigations, especially fact work product, may be discoverable.

Bret Cohen chairs the Labor & Employment and Trade Secrets & Employee Mobility Practice Groups at Nelson Mullins Riley & Scarborough LLP. His practice covers a wide range of areas, including the enforcement of non-compete and employment agreements, complex commercial and trade secrets litigation, and advice and counsel on termination and transition of high-level executives.  

Jillian Hart is an associate in the Labor & Employment Group at Nelson Mullins Riley & Scarborough LLP. Jillian focuses her practice on employment and trade secrets litigation and also advises clients on a variety of employment matters, including restrictive covenants and wage and hour issues.   

Matthew Brown is an associate in the Labor & Employment Group at Nelson Mullins Riley & Scarborough LLP. Matthew focuses his practice on trade secrets and non-compete litigation and advice and counsel on a variety of issues, including worker classification and employment agreements. 


Careful Scrutiny: The SJC and Mandatory Sentencing Laws

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by Jared B. Cohen

Legal Analysis 

The Supreme Judicial Court has long grappled with mandatory sentencing laws, expressing considerable skepticism and concern about their efficacy and fairness. Statutes that compel a fixed or minimum sentence for certain crimes shift power and discretion from judges to prosecutors. They often prevent courts from making individualized sentencing decisions tailored to the particular crime and defendant. Moreover, mounting empirical evidence shows that such laws disproportionately impact racial minorities.  

In recent years, statutes containing mandatory sentencing language have troubled the SJC and elicited a series of critical opinions. From the sharp skepticism expressed in Commonwealth v. Laltaprasad, 475 Mass. 692 (2016), through its recent decision in Commonwealth v. Montarvo, 486 Mass. 535 (2020), which construed the controversial habitual criminal offender (or “three-strikes”) law, G. L. c. 279, § 25, to authorize a sentence of probation, the SJC has subjected these statutes to increasingly rigorous scrutiny. Absent a legislative overhaul to rewrite or reform the sentencing statutes, the SJC’s skeptical and exacting review of many mandatory sentencing laws will likely remain a feature of the criminal legal landscape.

Mandatory Sentencing: Impact and Outlook

For most crimes, judges have wide discretion to impose any sentence up to the statutory maximum penalty. The facts and circumstances of each case and defendant are distinct. Part of a judge’s role under this ordinary sentencing structure is to consider the nuanced variations of each case to fashion a fair and just punishment that is effective but not harsher than necessary to achieve the legitimate purposes of sentencing.[1]  

By contrast, some statutory offenses mandate a fixed or minimum sentence. These mandatory provisions may be triggered by the crime,[2] the defendant’s criminal history,[3] or the way the offense was committed.[4] While substantially removing discretion from judges, statutes that carry mandatory sentences transfer discretion, power, and leverage to prosecutors, who can offer charge concessions during plea negotiations. Defendants are frequently willing to plead guilty and accept some period of incarceration in exchange for the prosecutor’s dismissal of a charge carrying a longer mandatory minimum sentence.          

Mandatory minimum sentences also disproportionately affect Black and Brown defendants. The September 2020 Harvard Law School study commissioned by the late Chief Justice Ralph Gants[5] found that Massachusetts mandatory sentencing laws disproportionately affect non-white defendants, leading them to face longer periods of incarceration than white defendants.[6] Based on data from 2014 to 2016, the Harvard study concluded that the racial disparity in sentencing in Massachusetts is largely explained by the racial disparity in the severity of the initial charges that defendants face; for similar conduct, non-white defendants are more likely than white defendants to be charged with offenses carrying mandatory minimum sentences.[7] The study also cited numerous reports showing racial disparities in prosecutorial decisions to seek mandatory sentencing enhancements under “habitual offender” (or “three strike”) laws that have been adopted in many states.[8] 

The Harvard study supports concerns that the SJC has raised with increasing frequency over the past few years. In Commonwealth v. Laltaprasad, 475 Mass. 692, 693 (2016), for example, the SJC held that trial judges have no lawful discretion to depart downward from minimum mandatory sentences set by statute. However, in the unanimous opinion written by Justice Margot Botsford, the Court observed that

[t]he efficacy, or lack of efficacy, of mandatory minimum sentences, particularly in drug crimes, is the subject of substantial public debate. But apart from the question of efficacy in terms of the purposes to be served by criminal sentences, data concerning convictions for drug offenses in Massachusetts raise a serious concern about the disparate impact of mandatory minimum sentences on defendants who are part of racial or ethnic minority groups.

Id. at 702. Laltaprasad suggested that “[i]t may be appropriate for the Legislature to consider anew, guided by the work of the [sentencing commission], the issue of authorizing sentencing judges to depart from mandatory minimum sentences in relation to certain types of drug offenses in appropriate circumstances.” Id. at 703. 

Legislative action soon followed. In its landmark 2018 criminal justice reform law, the Legislature eliminated some mandatory minimum sentences for lower-level drug offenses, but left many others in place.[9] Later in 2018, Chief Justice Gants, who was joined by Justices Barbara Lenk and Kimberly Budd, suggested in a concurring opinion that the recently-enacted criminal justice reform legislation had only “begun the process of revisiting the wisdom and fairness of mandatory minimum sentences for certain offenses,” and encouraged the Legislature to continue examining “the wisdom and fairness of other mandatory minimum sentences (including the length of those mandatory minimum sentences).” Commonwealth v. Baez, 480 Mass. 328, 332-33 (2018) (Gants, C.J., concurring) (emphasis in original).[10] 

Confusing Cases, Confusing Law

Against this backdrop, in recent years the SJC has wrestled with statutes that seemingly require a mandatory sentence, but which conflict internally or deviate from how similar language is used and understood in other statutes.

In Commonwealth v. Rodriguez, 482 Mass. 366 (2019), the Court addressed G. L. c. 269, § 10(m). Section 10(m) states that a person who unlawfully possesses a high-capacity firearm or feeding device “shall be punished by imprisonment in a state prison for not less than two and one-half years nor more than ten years.” But the statute also provides that anyone holding a valid firearm ID card “shall not be subject to any mandatory minimum sentence imposed by this paragraph,” and later states that “[t]he sentence imposed upon such person shall not be reduced to less than one year.” Id. Unable to determine conclusively to whom this last clause was intended to apply, the Court held that the trial court lawfully sentenced the defendant to not less than one and not more than two-and-a-half years, rejecting the prosecutor’s argument that the two-and-a-half-year mandatory minimum applied. Rodriguez, 482 Mass. at 368, 373-74.[11]

A year later, in Commonwealth v. Thomas, 484 Mass. 1024 (2020), the Court construed G. L. c. 265, § 18B, which adds a penalty for possessing a firearm during the commission of any felony. Section 18B states that a person convicted of that offense “shall, in addition to the penalty for such offense, be punished by imprisonment for not less than five years.” G. L. c. 265, § 18B. By comparing the statutory language in § 18B to similar language used in other statutes, the Court held that § 18B did not require either a consecutive sentence or a five-year minimum sentence, but authorized any custodial sentence provided the maximum sentence is no less than five years. Thomas, 484 Mass. at 1026 n.8, citing Commonwealth v. Hines, 449 Mass. 183, 191-92 (2007). 

Another notable example involves the home invasion statute, G. L. c. 265, § 18C. In Commonwealth v. Brown, 431 Mass. 772 (2000), the SJC held that the statute’s primary penalty provision, that a person convicted of a home invasion “shall be punished by imprisonment in the state prison for life or for any term of not less than twenty years,” meant what its plain language suggests: “§ 18C establishes a mandatory minimum sentence and that offenders under this statute may be sentenced to a term ranging from twenty years (minimum) to life (maximum).” Id. at 775.

However, the Court noted in dicta that a 1998 amendment to the statute – that a person who commits a home invasion while armed with a firearm “shall be punished by imprisonment in the state prison for 20 years. Said sentence shall not be reduced to less than ten years.” – was “problematic” and “lacking in coherence,” in that it introduced inconsistent language. Id. at 780-81. The Court remarked that “[m]ost likely, the problems with the amendment were simply the result of a legislative oversight, one we cannot remedy. . . . We make no attempt to interpret the amendment, but invite the Legislature to clarify it.” Id. In a later appeal more directly implicating the 1998 amendment, the Court stated that even if some results might appear absurd, where it could not discern the Legislature’s intent as far as the required sentence for a particular home invasion conviction, it would resolve any uncertainty against the Commonwealth and in favor of the defendant. Commonwealth v. Burton, 450 Mass. 55, 59-60 (2007).

In 2004, the Legislature amended G. L. c. 265, § 18C, to its current form, simplifying the statute by removing some of the 1998 amendment’s confounding language, while still retaining the same general penalty provision that a home invasion “shall be punished by imprisonment . . . for life or for any term of not less than twenty years.” Although this simplified version resolved some earlier confusion about the length of the required sentence, it raised a new question as to the availability of probation: the previous version explicitly prohibited probationary sentences, but the 2004 amendment did not. In construing the amended statute, the SJC observed that the amendment “may indicate a legislative intent to give a sentencing judge the power, in appropriate situations, to impose a term of probation in lieu of incarceration.” Commonwealth v. Zapata, 455 Mass. 530, 535 (2009). Unable to answer that question conclusively, the Court applied the rule of lenity and held that the amended statute “does not prohibit a judge from sentencing the defendant to probation.” Id.

In Zapata, the Court conceded that its “result, which has the effect of offering a sentencing judge a choice between probation and a mandatory minimum prison term of twenty years, may seem contrary to common sense,” and “may appear to be an anomalous result.” Id. at 535-36. Thus, the Court “again invite[d] the Legislature to clarify G. L. c. 265, § 18C.” Id. at 536. To date, the Legislature has not done so. Nor would it be the last time the Court reached such an “anomalous result.”   

Déjà vu: Commonwealth v. Montarvo

In December 2020, the SJC issued another decision, this time construing the habitual criminal offender statute. That statute, also known as the “three-strikes” law, provides that any person convicted of a third qualifying felony “shall be punished by imprisonment in state prison or state correctional facility for such felony for the maximum term provided by law.” G. L. c. 279, § 25(a). Despite this seemingly plain language, in Commonwealth v. Montarvo, 486 Mass. 535 (2020), the Court held that the law allows a judge to impose a sentence of probation. In a unanimous opinion, the SJC found the sentencing provision ambiguous and once again concluded that the rule of lenity required a reading more favorable to the defendant.

To understand Montarvo, it is necessary to understand the habitual criminal offender law as a whole. The statute has two primary penalty provisions. Subsection (a) states that a person who is convicted of any felony after having twice previously been convicted of a felony and sentenced to prison terms of at least three years, “shall be considered a habitual criminal and shall be punished by imprisonment in state prison or state correctional facility for such felony for the maximum term provided by law.” G. L. c. 279, § 25(a). Subsection (b) states that a person who is convicted of one of nearly 40 specified violent crimes after having twice previously been convicted of qualifying offenses and sentenced to prison terms of at least three years “shall be considered a habitual offender and shall be imprisoned in the state prison or state correctional facility for the maximum term provided by law” for the specifically enumerated felony. G. L. c. 279, § 25(b). Subsection (b) further specifies that “[n]o sentence imposed under this subsection shall be reduced or suspended nor shall such person so sentenced be eligible for probation, parole, work release or furlough or receive any deduction from such person’s sentence for good conduct.” G. L. c. 279, § 25(b). There is no comparable provision in subsection (a).

Read in isolation from one another, each of these two subsections seems on its face to require sentencing a qualifying defendant to the “maximum term provided by law.” Reading the two provisions together, however, the SJC found inconsistency and ambiguity. The Court observed that although the plain text of § 25(a) seemed clear, the immediately following text of § 25(b) explicitly prohibiting probation (as well as parole and reduced or suspended sentences) implied that without such explicit prohibition in § 25(a), judges might still retain authority to deviate from a mandatory prison sentence under § 25(a). Montarvo, 486 Mass. at 537. The Court found this interpretation plausible given the text indicating “the Legislature intended the punishment imposed on the ‘habitual violent offenders’ sentenced under § 25(b) to be both more limited in its application and harsher once imposed than the penalties imposed under § 25(a).” Id. at 539. But other SJC precedent interpreting the statute’s basic sentencing language raised doubts about that proposition. Reading both subsections together, and employing all applicable tools of statutory interpretation, the Court concluded that, “whichever way the plain language of G. L. c. 279, § 25, is read, some aspect of it is superfluous. Thus, we are left to conclude that the text of G. L. c. 279, § 25 (a), is ambiguous on the matter of probation.” Id. at 540.  

Given the ambiguity, the Court looked unsuccessfully to legislative history and intent, reasoning that, “when the Legislature intends to bar probation, it knows how to say so explicitly.” Id., citing Zapata, 455 Mass. at 535. Ultimately unable to discern the Legislature’s intent or resolve the statute’s ambiguity, the SJC once again applied the rule of lenity, concluding that it “must read § 25 (a) to provide sentencing judges with the discretion to impose probation.” Id. at 542. This holding, the SJC acknowledged, “has the effect of offering a sentencing judge in some cases a Hobson’s choice between probation and a mandatory term of twenty years in prison,” which may seem nonsensical. “Yet if this choice sounds familiar,” the Court noted, “that is because it is. In Zapata, we reached the same result.” Id. at 543.[12] Once again, stymied by its own legal analysis, the SJC threw up its hands and pointed to an incoherent statutory scheme that guaranteed no satisfactory outcome.

Conclusion

Montarvo is simply the latest case that demonstrates the difficulty the courts have had interpreting many of the Commonwealth’s mandatory sentencing laws. Given the SJC’s underlying reservations about the disparate impact of mandatory sentencing laws, and the Court’s chafing at arbitrary restrictions imposed by particular statutes, it is likely that these laws will continue to be subject to careful scrutiny. It would not be a surprise to see future cases in which the SJC finds less-than-obvious exceptions or escape hatches to avoid the imposition of mandatory sentences that may seem clear on the face of a statute.

[1] See Massachusetts Sentencing Commission, Advisory Sentencing Guidelines, at 102 (“Best Practice Principles for Individualized Evidence-Based Sentencing”). The Sentencing Commission “does not endorse the use of mandatory minimum sentences.” Id. at 59. 

[2] See, e.g., G. L. c. 265, § 1 (murder in the first degree “punishable with . . . imprisonment for life”); G. L. c. 269, § 10(a) (unlawful possession of a firearm outside of home or work “shall be punished by imprisonment . . . for not less than 18 months . . . in a jail or house of correction”); G. L. c. 269, § 10(m) (unlawful possession of a magazine with a capacity of more than 10 bullets “shall be punished by imprisonment in a state prison for not less than two and one-half years”).

[3] See, e.g., G. L. c. 94C, § 32(b) (mandatory penalty for possession with intent to distribute a Class A controlled substance based on prior convictions); G. L. c. 269, § 10(d) (mandatory penalties increased for unlawful possession of a firearm depending on prior similar convictions); G. L. c. 269, § 10G (mandatory penalties increased for unlawful possession of a firearm depending on prior criminal record).

[4] Compare G. L. c. 265, § 13B (penalty for indecent assault and battery on a child under 14 punishable by up to 10 years) with G. L. c. 265, § 13B1/2 (indecent assault and battery on a child under 14 committed during another enumerated crime or by a mandated reporter “shall be punished by imprisonment . . . not less than 10 years”). See also, e.g., G. L. c. 94C, § 32E (increasing mandatory sentences depending on weight of illegal drugs charged).

[5] In his first State of the Judiciary Address in 2014, Chief Justice Gants called for the elimination of mandatory sentencing laws in favor of individualized, evidence-based sentencing in all criminal cases. He noted that charges with mandatory minimum sentences give prosecutors more power than judges in sentencing and result in disparate and inequitable impact on minority communities. He made similar observations and calls to action when testifying before the Joint Committee on the Judiciary in 2015. In his 2016 Judiciary Address, Chief Justice Gants announced that he had enlisted Harvard to study the persistent racial disparity in sentencing. 

[6] “Black and Latinx people charged with offenses carrying mandatory minimum sentences are substantially more likely to be incarcerated and receive longer sentences than White people facing charges carrying mandatory minimum incarceration sentences.” “Racial Disparities in the Massachusetts Criminal System,” A Report by The Criminal Justice Policy Program, Harvard Law School (2020), at 2. More broadly, it found that in a number of ways, “mandatory and statutory minimum sentences contribute to the disparities we see in incarceration length for people of color.” Id. at 59; see generally id. at 2-4, 28-32, 52-64. 

[7] Id. at 64 (“Black and Latinx defendants tend to face more serious initial charges that are more likely to carry a mandatory or statutory minimum sentence. Despite facing more serious initial charges, however, Black and Latinx defendants in Superior Court are convicted of offenses roughly equal in seriousness to their White counterparts. . . . Further, the penalty in incarceration length is largest for drug and weapons charges, offenses that carry longstanding racialized stigmas. We believe that this evidence is consistent with racially disparate initial charging practices leading to weaker initial positions in the plea bargaining process for Black defendants, which then translate into longer incarceration sentences for similar offenses.”).

[8] These studies were based on data from jurisdictions outside of Massachusetts. Id. at 59.     

[9] Many individuals charged with common offenses, including unlawful possession of a firearm or drug distribution—even absent any allegation of violence—are still routinely subject to mandatory minimums.    

[10] In Baez, the Court held that prior juvenile adjudications may constitutionally be used as prior convictions for sentencing adult defendants under Massachusetts’s “armed career criminal act,” G. L. c. 269, § 10G. Chief Justice Gants wrote separately “to encourage the Legislature to consider the wisdom and fairness of the mandatory minimum aspect of those enhanced sentences, especially where the predicate offenses were committed when the defendant was a juvenile.” Baez, 480 Mass. at 332.

[11] Acknowledging this “imperfect” statute’s “opaque” language was described by various trial and appellate judges as “vexing,” “confusing,” and “no grammatical paragon,” and had “caused courts some consternation,” the SJC left little doubt about its view of § 10(m): “Harmonizing the provisions in a manner that does not make any of the statutory language superfluous, that sees the statute as a whole without internal contradiction, and that renders the legislation consistent with common sense, all as the Legislature intended, is quite the job with this statute. The legislative history, while interesting, is only minimally helpful in resolving the issue at hand.” Rodriguez, 482 Mass. at 368, 369-71, 373 (internal citations omitted). 

[12] As in Zapata, the Court in Montarvo invited the Legislature to clarify its intent: “Should the Legislature decide to do so, it may amend § 25(a) to bar a judge from imposing probation. It need not look far for how to accomplish this goal.” 486 Mass. at 543, citing G. L. c. 279, § 25(b).   

Jared B. Cohen is an Assistant Attorney General in the Criminal Bureau of the Attorney General’s Office and a current participant in the BBA’s Public Interest Leadership Program.  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.


Confronting an Accuser via Zoom: The SJC Considers the Constitutionality of Virtual Evidentiary Hearings

Brett D. Lovins_resized

by Brett D. Lovins 

Case Focus

In Vazquez Diaz v. Commonwealth, 487 Mass. 336 (2021), the Supreme Judicial Court confronted the novel question of whether, during the COVID-19 pandemic, a virtual evidentiary suppression hearing violates a defendant’s constitutional rights. The Court concluded that such a virtual hearing during the pandemic is not a per se violation of a defendant’s right to be present, to confrontation, to a public hearing, or to effective assistance of counsel, and instead determined that videoconferencing technology can create a close approximation of the courtroom setting. However, under the specific facts of the case, the Court also held that the motion judge abused her discretion in denying the defendant’s motion to continue where he waived his speedy trial rights and where a delay would not substantially harm the government’s case, especially since there were no civilian victims or witnesses.

Background

John W. Vazquez Diaz, charged with drug trafficking in the Superior Court, sought an evidentiary hearing on his suppression motion. After the onset of the COVID-19 pandemic, the judge ordered the hearing to proceed via Zoom. The defendant objected, waived his speedy trial rights, and requested that the case be continued until an in-court proceeding could be held. The judge denied the request, and the defendant filed a direct appeal pursuant to G. L. c. 211, § 3. The single justice reserved and reported the matter to the full Court.

The Opinion

In the opinion, authored by Justice Cypher, the Court addressed—and rejected—the defendant’s State and Federal constitutional arguments.

As to the defendant’s right to be present during a critical stage of the proceedings, derived from article 12 of the Massachusetts Declaration of Rights and the Sixth Amendment to the United States Constitution, the Court concluded that under certain circumstances, a suppression hearing could be held by videoconference so long as the technology provided adequate safeguards. The Court reasoned that Zoom could “approximate a live physical hearing” and “effectively safeguard the defendant’s right to be present” by permitting him to listen to evidence, adequately observe the testifying witnesses, and privately consult with counsel using virtual, private Zoom “breakout rooms.” Id. at 342. Nevertheless, the Court determined that under the particular circumstances of the case and in light of the “exceptional circumstances” of the pandemic, the judge abused her discretion by denying the defendant’s motion to continue. Id. at 344 & n.13. The Court opined, however, that the government’s “significant” interest in protecting public health “combined with its interest in the timely disposition of a case, would, in many instances, outweigh the defendant’s interest in an in-person hearing.” Id. at 343.

As to the defendant’s argument that a virtual hearing deprived him of his right to confrontation, the Court joined a minority of states to hold for the first time that the confrontation right extends to suppression hearings. But it concluded that, under art. 12, a virtual evidentiary hearing held during the pandemic is not a per se violation of that right, opining that videoconferencing (when functioning properly) closely approximates the courtroom because two-way video transmission permits live cross-examination and the defendant and the judge are virtually present onscreen and can see all the participants. As to the Sixth Amendment, the Court explained that the right may be satisfied without physical, face-to-face confrontation when necessary to further an important public policy and where the reliability of the testimony can be assured. It determined that protecting public health during the pandemic constituted an important public policy and two-way videoconferencing technology was sufficiently reliable, but ultimately demurred on whether a virtual hearing was necessary in light of its holding regarding the continuance motion.

The Court also rejected the defendant’s argument that a virtual hearing violated his Sixth Amendment right to a public hearing, concluding that a videoconference in which the public could join by telephone or Zoom was not a “constitutional closure” because the virtual nature of the hearing adjusted “only the forum” and “not the prospective audience.” Id. at 353. It reasoned that the limits on access were “no broader than necessary given the severity of the pandemic” and that the court provided virtual alternative access for those with the requisite technology. Id. at 354.

Finally, the Court rejected the defendant’s concerns about his right to the effective assistance of counsel under art. 12 and the Sixth Amendment, concluding that virtual hearings with virtual private breakout rooms are not a deprivation of that right. The Court noted that the defendant can interrupt the proceeding to confer with counsel, but also advised judges to confirm that the technology is functioning properly and encouraged judges to check with counsel periodically to ask whether their clients wished to confer.

The Concurrence

Justice Kafker authored a concurring opinion. Although he agreed with the Court’s conclusion that in this case the judge abused her discretion by denying the motion to continue, he wrote separately to emphasize the potential problems of virtual hearings and to implore judges to proceed cautiously. He noted that virtual hearings “may alter our evaluation of demeanor evidence, diminish the solemnity of the legal process, and affect our ability to use emotional intelligence, thereby subtly influencing our assessment of other participants.” Id. at 357 (Kafker, J., concurring). For example, he noted that body language is concealed, subpar lighting obscures facial expressions, eye contact is impossible, small images and diminished sound dilute the potential emotional impact, and even a participant’s Zoom background may trigger subconscious biases. He also noted the potential for technological problems, user errors, and accessibility issues. “Importantly,” he wrote, “access to reliable Internet is often dependent on income, socioeconomic background, and educational attainment,” and “[l]ack of Internet access is more common among racial minorities.” Id. at 366 n.16. Moreover, he expressed concern about the defendant’s confrontation rights, cautioning that “‘there is something deep in human nature that regards face-to-face confrontation between accused and accuser’ as essential to fairness, a concept that has ‘persisted over the centuries because there is much truth to it.’” Id. at 364–65 (quoting Coy v. Iowa, 487 U.S. 1012, 1017, 1019 (1988)).

Implications

In some ways, the Vazquez Diaz decision is narrow and case-specific: the motion judge abused her discretion in denying the defendant’s motion to continue during a pandemic where the defendant had waived his right to a speedy trial and a delay would not substantially harm the government’s case. But the holding leaves open the possibility that under different circumstances, a judge may proceed virtually over the defendant’s objection. This might include situations where there are costs to delay, including the prosecution’s ability to prove its case because evidence may disappear altogether or degrade as memories fade.

While the Court’s decision regarding the requested continuance may be seen as narrow, the Court did not limit its discussion to that issue. Rather, it broadened its focus to reach the significant issue of the constitutionality of virtual evidentiary hearings and found them permissible, despite the concerns articulated by Justice Kafker. If virtual evidentiary hearings continue to be used after the current pandemic when no longer necessary to protect public health, these constitutional issues will surely be the basis of future litigation.

In the meantime, the decision puts the onus on defense attorneys to vigilantly protect their clients’ rights. That might mean requesting a continuance rather than proceeding to a Zoom-based evidentiary hearing when it is in their clients’ best interests to do so. And when proceeding virtually, advocates must ensure their clients connect from a neutral location with stable internet, assume responsibility for requesting breakout rooms, object if circumstances impede the judge’s evaluation of a witness (e.g., poor lighting or distractions), and confirm that the judge monitors the hearing for technological problems.

The Court’s holding that the right to confrontation extends to evidentiary suppression hearings is a significant victory for criminal defendants. It is now up to trial courts and practitioners to ensure that confrontation—so essential to fairness—is not diluted in this new virtual world.

Brett D. Lovins is a criminal defense attorney at Lovins & Metcalf. He represents individuals accused of wrongdoing from the initial stages of investigation through appeals.


Goodbye Substantial Contributing Factor: SJC Redefines the Massachusetts Causation Standard in Multiple Tortfeasor Cases

Creedon_Jresizedbtfitz_20140915_0129_Mby Jennifer A. Creedon and Stephanie M. Gazda

Legal Analysis 

In Doull v. Foster, 487 Mass. 1 (2021) (“Doull”), the Supreme Judicial Court (“SJC”) adopted a but-for factual causation standard as set forth in the Restatement (Third) of Torts (2010) and abandoned the substantial contributing factor test in matters involving multiple tortfeasors or multiple causes, except for toxic tort cases.

Background

Doull involved a medical malpractice claim against two medical providers for alleged negligent treatment of the Plaintiffs’ decedent. Dr. Richard Miller and Nurse Practitioner Ann Foster treated Laura Doull from 2008 to 2011. Foster provided Doull with progesterone cream in 2008 to treat perimenopause-related symptoms, which Doull used through the spring of 2011. Between March and May 2011, Doull complained of shortness of breath on three separate occasions, but Foster diagnosed it a symptom of Doull’s allergies and history of asthma. Doull suffered a stroke in May 2011 and another doctor diagnosed her with a pulmonary embolism and chronic thromboembolic pulmonary hypertension (CTEPH), a rare disease impacting the pulmonary artery and heart. Doull, 43 years old, died in 2015 from complications arising from CTEPH. Plaintiffs filed a complaint against Miller and Foster, alleging failure to obtain informed consent as to the potential risks of pulmonary emboli associated with the progesterone cream treatment and failure to properly diagnose and treat Doull for her symptoms of pulmonary emboli, leading to her premature death.

After the close of evidence at trial, the trial judge heard arguments concerning the disputed jury instructions. Plaintiffs argued for the application of the substantial contributing factor test. Under this test, to be found legally responsible for Doull’s injuries, the Defendants’ negligence need only be a substantial contributing factor in bringing about those injuries.[1] Defendants, on the other hand, sought a but-for causation instruction. Under this standard, even if they were found to be negligent, the jury would also have to find that Doull’s injuries would not have occurred but for their negligence. The trial court agreed that the but-for causation standard was the appropriate instruction.

The jury found that the Defendants did not fail to acquire informed consent from Doull regarding the progesterone cream. While the jury did find that Foster negligently failed to diagnose Doull’s pulmonary embolism and Miller failed to properly supervise Foster, it did not find this negligence was the “sole/but-for” cause of harm suffered by Doull under the trial court’s instruction.  

The SJC’s Decision

The main issues for the SJC to decide were, in a case involving multiple potential tortfeasors or potential causes of injury, whether the substantial contributing factor test may or must be used in lieu of the but-for standard in the causation jury instructions and whether the court should adopt a “factual cause” of harm standard, as provided in Sections 26 and 27 of the Restatement (Third) of Torts.

The SJC held that the but-for standard is the proper standard in most negligence cases, as it allows the factfinder to separate the necessary causes from other conduct that, although negligent, did not cause harm.[2] Under the Restatement (Third) of Torts, the factfinder can determine whether a tortfeasor is a factual cause even in instances where the cause was small but necessary.[3] The but-for standard does not require that a defendant must be the sole factual cause of harm.[4] Rather, it keeps the focus on whether the harm would still have occurred absent the defendant’s conduct.[5] Where multiple causes are alleged, which is often the case, it is appropriate to instruct a jury that there can be more than one factual cause of harm.[6] By recognizing that multiple causes can exist, the but-for standard precludes the need for substantial contributing factor in the causation analysis.[7]

In this case, the SJC found that the trial court’s but-for instruction to the jury was proper. The jury ultimately determined that the Defendants did not cause Doull’s injuries, despite breaching their duty as medical providers by failing to diagnose the pulmonary embolism, because the evidence showed that the demonstrated harm would have resulted even in the absence of their negligence. Thus, no causal connection existed between the Defendants’ conduct and Doull’s harm.[8] 

Despite being accepted and used by Massachusetts courts, the SJC observed that not only does the substantial contributing factor test create confusion as it is both too strict and too lenient, it also invites the factfinder to skip the factual causation inquiry by deciding the negligent conduct is substantial without determining whether it was even the cause of the harm. [9] Furthermore, it inserts a high degree of subjectivity as to what is substantial.[10]

Although the SJC chose not to extend its decision to toxic tort cases, the Court indicated in a lengthy footnote that it would reconsider the substantial contributing factor test in an appropriate toxic tort case in the future.[11] The SJC acknowledged that, because of the unique features of toxic tort cases, including the number of defendants involved, latency period of the diseases, and exposure from multiple sources, there might be difficulties in using the but-for standard in such cases. Additionally, there might be factual and scientific limitations on a plaintiff’s ability to establish the requisite causal connection between the harm and an individual defendant. 

Concurring in the judgment, Justice Lowy, joined by Justice Gaziano, agreed with the outcome of the case. Nonetheless, the concurrence criticized the majority for abandoning decades of precedent to alleviate confusion that does not exist, arguing that the substantial contributing factor test usefully directs the factfinder’s attention to the conduct of the parties in determining legal responsibility.[12] While the but-for test looks at what might have been and whether the harm would have occurred but for a defendant’s conduct, the substantial contributing factor test looks at what actually happened and whether a defendant’s conduct played a role in the result.[13] 

Conclusion

Given that the substantial contributing factor test has been used for over 100 years, Doull represents a significant change in Massachusetts tort law. The SJC saw an opportunity to untangle complex causal determinations by eliminating the substantial contributing factor test. Prior to Doull, a court could utilize a jury instruction that encompassed a substantial contributing factor test in lieu of a “but for” test in a multiple tortfeasor case. However, the substantial contributing factor test was never intended to be a wholesale replacement of but-for causation. In this way, Doull represents a return to concepts central to tort law, including the but-for standard. The decision marks an effort by the SJC to have the trial courts give consistent instructions on causation standards, and for the factfinder to determine whether a defendant’s conduct was a cause of the plaintiff’s harm. 

[1] See O’Connor v. Raymark Industries, Inc., 401 Mass. 586, 589 (1988). O’Connor defined the core principles of causation, including substantial contributing factor. Id. at 591-92. The trial court instructed the jury to find whether the plaintiff was exposed to asbestos from the defendant’s product, and if so, determine whether such exposure substantially contributed to the cause of his mesothelioma. Id. at 588-89. The trial court noted that “[i]t doesn’t have to be the only cause, but it has to be a substantial contributing cause. … It means something that makes a difference in the result.” Id. at 589. The jury found that while the plaintiff was exposed to asbestos from the product, such exposure did not substantially contribute to the cause of his mesothelioma. Id. at 587. On appeal, the SJC found that by defining a substantial contributing factor as “something that makes a difference in the result,” i.e., a but-for cause of the plaintiff’s harm, this implied that “the plaintiff had the burden of proving that the defendant’s product contributed in fact” to the eventual outcome “in a legally cognizable manner.” Id. at 592. 

[2] Doull v. Foster, 487 Mass. 1, 10 (2021). 

[3] Section 26 of the Restatement (Third) of Torts: Physical and Emotion Harm (2010) states that negligent conduct must be a factual cause of harm, meaning the harm would not have occurred absent the conduct, in order for one to be held liable. Multiple causes are addressed in Section 27, which provides that “each act is regarded as a factual cause of the harm.” Comment c to Section 27 further explains that if a defendant’s conduct was fully capable of causing the harm, then they cannot escape liability merely because of the existence of another sufficient cause.

[4] Doull, 487 Mass. at 12, citing Restatement (Third) of Torts, § 26 cmt c. 

[5] Id. at 12-13.

[6] Id. at 13, n.13. The SJC also refers to the concept of “causal sets” introduced in the Restatement (Third) of Torts, Section 26, cmt. c, which are defined as “the group of actions or conditions that were necessary to bring about the harm.” Id. at 13, n.14. Where the factual harm is an aggregate of multiple causes, the Restatement suggests that it is a causal set. Id.

[7] Id. at 13.

[8] Id. at 11-12.

[9] Id. at 15. 

[10] Id.

[11] Id. at 17, n.22.

[12] Id. at 25, 27. 

[13] Id. at 26-27. 

Jennifer A. Creedon is a Partner at Martin, Magnuson, McCarthy & Kenney. Her practice encompasses a wide variety of products liability and business litigation matters. Jennifer authored an amicus brief in Doull v. Foster on behalf of the Massachusetts Defense Lawyers Association (MassDLA).

Stephanie M. Gazda is an associate attorney at Martin, Magnuson, McCarthy & Kenney. Stephanie focuses her practice on toxic tort, products liability, and general liability matters.


Enforceability of Online Contracts under Massachusetts Law: Kauders v. Uber Technologies, Inc.

KJConroyResized

by Kevin J. Conroy 

Case Focus

Earlier this year, in Kauders v. Uber Technologies, Inc., 486 Mass. 557 (2021), the Supreme Judicial Court provided further clarity on an issue likely to impact every resident of the Commonwealth and the businesses they interact with online – namely, the enforceability of agreements created through website and mobile apps, including the terms and conditions that purport to govern the use of those businesses’ online platforms.

The Test for Enforceability

In Kauders, the SJC evaluated the interface by which Uber had attempted to secure its users’ assent to its terms and conditions, including a mandatory arbitration clause. Recognizing that “[t]he touchscreens of Internet contract law must reflect the touchstones of regular contract law,” the SJC held that to create an enforceable online contract under Massachusetts law, there must be both reasonable notice of the terms and a reasonable manifestation of assent to those terms.” Id. at 572. Kauders’ two-part test is consistent with the approach taken by appellate courts from around the country as well as in a 2013 decision from the Massachusetts Appeals Court. Id. (citing Ajemian v. Yahoo!, Inc., 83 Mass. App. Ct. 565, 574-75 (2013) and Conroy & Shope, Look Before You Click: The Enforceability of Website and Smartphone App Terms and Conditions, 63 Boston Bar J. 23, 23 (Spring 2019)). See also Emmanuel v. Handy Technologies, Inc., No. 20-1378 (1st Cir. Mar. 22, 2021) (applying Kauders to find that plaintiff had formed an arbitration agreement with the defendant).

Uber had asserted that Kauders must pursue his claim in arbitration because he accepted Uber’s terms of use. According to Uber, Kauders had accepted those terms by proceeding to register an account after viewing a screen in Uber’s app with the language “By creating an Uber account, you agree to the Terms & Conditions and Privacy Policy” with embedded hyperlinks to the actual text of the terms. The SJC concluded that Uber failed to satisfy both the reasonable notice and reasonable manifestation of assent prongs of the contract analysis. By identifying several deficiencies in Uber’s interface, the opinion provides guidance on design choices that can contribute to enforceable online contracts in future cases.

Reasonable Notice of Terms

With respect to reasonable notice, the SJC clarified that actual notice will generally be found if the user has been presented and viewed the terms, or if the user is required to interact with the terms somehow before proceeding to use the app or website. Thus, interfaces that require the user to scroll through the entire text of the terms before being allowed to progress should satisfy the reasonable notice prong of the test under Kauders. Absent actual notice, the SJC indicated that clarity and simplicity of the presentation of the terms should be the focus. If the terms are not presented directly on the screen, the full text should at least be available (if not required to be accessed) by following a clear link with minimal intermediate steps.

The SJC explained that, ultimately, reasonable notice involves a determination of whether “the offeror [has] reasonably notif[ied] the user that there are terms to which the user will be bound and [has] given the user the opportunity to review those terms.” Id. at 573. The Court noted that Uber’s notice, in contrast, was not reasonable as the terms could be reached only by following two successive links which the user was not required to access to complete the registration process. The SJC also identified several other features of Uber’s interface that detracted from the clarity of the notice of the terms. For example, the nature of the transaction – registering for an account to enable future ride services – might not suggest to a reasonable user that the user is entering into a contractual relationship governed by the extensive indemnification and waiver provisions included in Uber’s terms. The SJC also observed that the language informing the user of the contractual consequences of proceeding with the registration was displayed less prominently than other elements.  That language appeared at the bottom of the screen, whereas the elements the user was required to interact with to proceed (e.g., entering payment information) drew the user’s attention away to the top of the screen.

Reasonable Manifestation of Assent

With respect to reasonable manifestation of assent, the SJC declared a clear preference for “clickwrap” interfaces in which the user is required to indicate express and affirmative assent to the terms by checking a box or clicking a button that reads “I agree” or its equivalent. The Court likened the affirmative act of clicking such a box or button of assent to “the solemnity of physically signing a written contract” and suggested that this would help alert the user to the contractual significance of their action. Where the interface does not require the user to expressly agree – as in the Uber interface at issue in Kauders – assent may still be inferred from the actions the user takes. However, the SJC cautioned that in such cases the courts would need to engage in careful consideration of the totality of the circumstances, and “it will be difficult for the offeror to carry its burden to show that the user assented to the terms.” Id. at 575.

The Court admonished that Uber’s interface obscured the connection between the user’s action and assent to Uber’s terms because the app only required the user to click a button labelled “DONE” (rather than “I agree” or “Create Account”) on the screen that provided notice of Uber’s terms. Id. at 577. To underscore that “uncertainty and confusion in this regard could have simply been avoided by requiring the terms and conditions to be reviewed and a user to agree,” the SJC compared Uber’s rider registration interface (at issue in the case) with its separate, driver registration interface. The latter required prospective drivers to confirm at least twice that they had reviewed and accepted the terms of the agreement by clicking a button expressly stating “YES, I AGREE.” In contrast, the SJC observed that the Uber rider interface at issue “enables, if not encourages, users to ignore the terms and condition.” Id. at 577.

The Substance of the Terms

The SJC also expressed skepticism about various aspects of Uber’s terms, including a provision that purported to permit the company to make unilateral changes to the terms without notice (placing “the burden on the user to frequently check to see if any changes have been made”). The Court likewise expressed doubt about a provision that “totally extinguishe[d] any possible remedy” against the company. While the Court did not reach the question of the enforceability of such terms given its determination that no contract had been made, it included the severe consequence of the terms in its analysis of whether reasonable notice was provided.

Conclusion

Kauders confirms that Massachusetts courts will closely scrutinize the manner in which websites and apps communicate, and attempt to secure users’ agreement to, the terms and conditions that purport to govern their use, particularly if there is any indication that the existence or import of the terms are minimized or obscured. Anything less than an interface that is designed simply and clearly to require (1) that the terms be viewed actively by the user (through direct display on the screen or a direct hyperlink to the full terms) and (2) that there be express and unambiguous assent (through check-the-box style interfaces or “I Agree” buttons) is likely to invite avoidable court challenges.

Kevin J. Conroy is a litigation attorney at Nystrom, Beckman & Paris in Boston.  Kevin’s practice focuses on complex disputes including contract claims, insurance coverage claims, and other business disputes.


Who Can Bring A Zoning Appeal? SJC Reaffirms the Test for Standing in Murchison v. Sherborn ZBA

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by Adam Sherwin

Case Focus

The Supreme Judicial Court issued its decision in Murchison v. Sherborn Zoning Board of Appeals, 485 Mass. 209 (2020), last year, concerning the test of standing for a G.L. c. 40A, § 17, zoning appeal. This decision, which came after an application for Further Appellate Review (“FAR”) of a published Appeals Court decision, was closely followed by the Massachusetts real estate community. The prior Appeals Court decision–which could be seen as watering down the test for standing–left many real estate professionals concerned that the floodgates would open for zoning appeals.

Murchison is one of the few, if only, times that the Supreme Judicial Court (“SJC”) issued an order affirming the trial court decision the day after oral argument, with a written decision coming some months later. Such a move underscores the high stakes of this decision.

The SJC’s decision in Murchison reaffirms an important principle for establishing standing to pursue a zoning appeal: One cannot appeal simply because they claim a zoning violation has occurred. Rather, a G.L. c. 40A, § 17, appeal requires such a claimant to show particularized harm from the zoning violation.

Background on Chapter 40A

Chapter 40A allows any person “aggrieved” by a zoning decision to appeal the matter through a civil action, which most commonly is filed in Superior Court or Land Court (but can also be filed in Housing Court or District Court).

Judicial review under chapter 40A is a “hybrid” between a trial and an appellate case. Like a trial matter, such a case requires a court to find facts de novo, without deference to the local board hearing. For this reason, it is common in a G.L. c. 40A, § 17, case to have witnesses, exhibits, and other evidence that was never presented at the initial zoning hearing. Following such factfinding, however, a court must give deference to the zoning board’s decision, and uphold it unless the decision is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.

The text of G.L. c. 40A, § 17, expressly addresses standing by stating that only a “party aggrieved” from a zoning decision may pursue an appeal. G.L. c. 40A, § 10, further creates a presumption of standing for any abutters located within three hundred feet of the property line of the petitioner seeking the zoning relief.

This presumption, however, can be rebutted by a defendant through a showing that (1) the alleged harm is not a protected interest under the zoning ordinance or (2) credible affirmative evidence exists to refute the presumption. If standing is rebutted, the plaintiff pursuing the zoning appeal bears the burden of showing aggrievement, with the party who received the zoning relief bearing the burden of showing that is entitled to such approval.

G.L. c. 40A, § 17, is largely silent as to what specific harms may constitute aggrievement. The caselaw is clear that this term is not meant to be narrowly construed, and intended to a flexible standard. Aggrievement, however, must be based on a private interest, not one affecting the public as a whole. Common grounds for standing in G.L. c. 40A, § 17, appeals include increased density, loss of privacy, and traffic concerns.

Case Background

The plaintiffs in Murchison, homeowners in Sherborn, challenged a decision of the local zoning officer to grant a foundation permit for a single-family residential home across the street from their property. They argued that this home lacked the necessary minimum lot width for such a permit.

The plaintiffs filed a claim with the Town of Sherborn’s Zoning Board of Appeals, seeking review of the zoning officer’s decision–a required step for anyone challenging a local zoning decision. After the ZBA upheld the zoning officer’s decision, the plaintiffs filed an appeal in the Land Court pursuant to G.L. c. 40A, § 17.

Because the plaintiffs were abutters to their neighbor’s property, they enjoyed the rebuttable presumption of standing under G.L. c. 40A, § 11. Following a trial, however, the Land Court ruled that the defendants had rebutted this presumption, largely through expert testimony, and that the plaintiffs were not aggrieved by the ZBA’s decision.

On the merits, Land Court found that the alleged harm to the plaintiffs was de minimis. A key factor for this decision was that the plaintiffs’ home was across the street from proposed development, which rendered the plaintiffs’ concerns about lighting, traffic, and noise applicable to the community as a whole, rather than particularly to themselves. The plaintiffs appealed.

Appeals Court Decision

The Appeals Court, in a published decision, reversed the Land Court decision. 96 Mass. App. Ct. 158 (2019). The Appeals Court noted that the minimum lot width requirement was a zoning ordinance aimed at preventing overcrowding. Because of this, the Appeals Court reasoned, any increase in density was, on its own, enough to prove aggrievement.

The Appeals Court reasoned that determining one’s “harm” for a G.L. c. 40A, § 17, appeal comes directly from the applicable zoning ordinance:

There is no platonic ideal of overcrowding against which the plaintiffs’ claim is to be measured. Although the distance between the houses might not amount to overcrowding in an urban area, absent some constitutional concern, which the defendants do not argue exists in this case, cities and towns are free to make legislative judgments about what level of density constitutes harm in various zoning districts and to codify those judgments in bylaws. It does not matter whether we, or a trial judge, or the defendants, or their counsel, would consider the district “overcrowded.” What matters is what the town has determined.

The Appeals Court rejected the argument that the Murchison plaintiffs needed to do anything further to show particularized harm. This was in contrast to the Land Court decision and prior caselaw, which required such plaintiffs to do more than simply note that a zoning violation occurred. The Supreme Judicial Court then granted an application for FAR.

SJC Decision

The SJC reversed the Appeals Court and upheld the Land Court’s decision that the plaintiffs lacked standing for a zoning appeal.

In doing, the SJC reaffirmed a central tenet for determining one’s standing for a G.L. c. 40A, § 17, appeal: “establishing standing requires a plaintiff to do more than merely allege a zoning violation.” 485 Mass. at 214.

As the SJC noted, the Murchison plaintiffs needed to demonstrate that they themselves would be impacted by the zoning relief, such as a showing that the development interfered with a view, reduced light or air, or interfered with their privacy.

While the Appeals Court was willing to determine standing mostly based upon a local municipality’s zoning ordinance alone, the Supreme Judicial Court clarified that a failure to comply with zoning, on its own, does not establish aggrievement. 

Implications of Murchison

Murchison did not chart a new course for determining standing in a G.L. c. 40A, § 17, appeal. Rather, Murchison largely reaffirmed prior caselaw on standing, by emphasizing the importance of showing one’s individual harm as grounds for aggrievement.  

Murchison, however, does reemphasize the tension in resolving such inquiries. Everyone involved in a real estate dispute is familiar with the old adage that “all property is unique.” Consequently, what one property owner considers as an important protection from a zoning ordinance may not be the same as another. In other words, while Land Court might deem the Murchison plaintiffs’ concerns about their neighbor’s minimum lot width to be de minimis, such a determination is not always a clean-cut answer. 

The Appeals Court offered the simplest solution to this type of question: Let each municipality’s zoning ordinance make this call. But affording standing to nearly any party alleging a zoning violation would seemingly eliminate “aggrievement” from G.L. c. 40A, § 17.

Therefore, determining whether one’s harm is more than de minimis will remain a continued source of contention for future zoning appeals. Those pursuing zoning appeals must be mindful that a determination of standing is a question of fact, and careful thought must be given to the evidence necessary to prove such a matter.  

Murchison also reaffirms that, in Massachusetts, zoning decisions are intended to be local. Because a zoning appeal under G.L. c. 40A, § 17, requires a showing of harm, many zoning decisions will not (and, indeed, cannot) be reviewed in court, for want of a party with standing to challenge the decision. This means that, for many zoning matters, local board of appeals or special permit granting authorities will continue to have the final say on many land use decisions.

Adam Sherwin is a solo practitioner concentrating in real estate litigation. He represents property owners, landlords, and tenants with a wide array of real estate matters, including boundary disputes, zoning appeals, contract disputes, foreclosure law, and landlord-tenant matters.


Town of Sudbury v. Massachusetts Bay Transportation Authority

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by Jessica G. Kelly

Case Focus

The long-standing “prior public use doctrine”—a common law doctrine which arose in the 1800s—states that “public lands devoted to one public use cannot be diverted to another inconsistent public use without plain and explicit legislation authorizing the diversion.” Town of Sudbury v. Massachusetts Bay Transportation Authority, 485 Mass. 774, 775 (2020) (Sudbury).  In a much anticipated decision, the Supreme Judicial Court (SJC) held that the prior public use doctrine did not apply to “diversion of land devoted to one public use to an inconsistent private use.” In Sudbury, the SJC declined to extend the doctrine to land transactions between public agencies and private entities. 

As the defendants in the underlying case, the Massachusetts Bay Transportation Authority (MBTA) and NSTAR Electric Company d/b/a Eversource Energy (Eversource) urged, the SJC reasoned that application of the prior public use doctrine to public to private transactions would have broad, adverse implications for real estate and housing development in the Commonwealth, including creating significant uncertainty in developments that benefit the public.

Background

The case began in 2017, after the MBTA entered into an option agreement with Eversource to install an electric transmission line underneath approximately nine miles of a former MBTA railroad right of way (ROW), a portion of which traveled through the Town of Sudbury (Town). The MBTA originally acquired the ROW through a railroad company indenture and through eminent domain for purposes of mass transportation services. The ROW had not, however, been used as a railroad for over forty years. The option agreement would generate $9.3 million for the MBTA over twenty years. 

The Town challenged the agreement as violating the prior public use doctrine, arguing that the ROW could not be changed to an electrical utility use absent legislative approval. The Town took the position that Eversource’s proposed utility line was actually a subsequent public use, because utilities have a public purpose and, therefore, fell within the doctrine.

In granting the defendants’ Motion to Dismiss, the Land Court (Piper, J.) concluded that the Town’s standing was on the “precipice of adequacy,” but that Eversource was not a public entity, the proposed use at issue was a subsequent private use, and, therefore, the prior public use doctrine did not apply.

The Court’s Analysis

The SJC affirmed. The SJC first held that the Town had standing based on the limited portions of publicly-owned land abutting or within the ROW, but only to the extent the Town had a legally cognizable interest in the ROW remaining in its “current, disused, and overgrown condition.”

The SJC next addressed whether the prior public use doctrine applied to the option agreement. The Town argued that the Land Court erred because (1) even though Eversource is a private corporation, the proposed use of the ROW for electrical transmission lines is a public use; and (2) the Land Court’s narrow reading of the prior public use doctrine defeats the purpose of protecting “public land acquired for a particular public use” from being diverted to a different use without legislative approval.

The SJC agreed with the Land Court that, “the proposed use of the MBTA ROW to construct and operate underground transmission lines is not a public use.” The Court focused on the character of the use, noting that Eversource is privately owned and operated, will pay taxes and can earn a profit on the project. That Eversource is subject to public regulation and oversight did not convert the privately owned utility into a public entity.    

The SJC also agreed with the Land Court that the prior public use doctrine could not be extended to protect public land from any subsequent inconsistent use. The Court explained that the doctrine originally developed, not just to protect public land, but to resolve disputes over inter-governmental transfers between public agencies, political subdivisions and/or state-sponsored corporations that may have conflicting claims to authority over the use of public land, especially parkland. As examples, the SJC cited to a dispute between a town and State agency over whether property acquired for parkland could be converted to a transportation use, Brookline v. Metropolitan Dist. Comm’n, 357 Mass. 435, 435 (1970), and a dispute between a town and county commissioners concerning the relocation of a public way over land previously appropriated for school and library use, Needham v. County Comm’rs of Norfolk, 324 Mass. 293, 295-297 (1940), among others. 

The SJC concluded that the “doctrine of prior public use prevents the absurd result of public entities, each with the authority to exercise eminent domain, taking and retaking the same property from each other” in perpetuity. Noting that the prior public use doctrine had never been applied to prevent a subsequent private use by a private entity, the SJC expressly declined to extend the doctrine to such circumstances. The Court also cautioned that requiring legislative approval for every diversion of land from public to private use “would lead to numerous deleterious consequences,” such as adding significant uncertainty to development in the Commonwealth and making important collaborations between public and private entities time- and cost-prohibitive.

Implications

The SJC’s decision in Sudbury was a relief to real estate and utility industries, among others. The SJC appeared persuaded by the argument that public/private development projects rely on the ability of public agencies to divert public land to private entities for private uses, and that many such developments further public purposes such as clean energy, public housing, and affordable child care facilities, and generate significant income for the Commonwealth.

It is important to note that the Sudbury decision does not open the floodgates to unfettered transfers of public lands, but simply eliminates the need for legislative approval for those transfers to private entities for private uses. Aggrieved parties may still challenge projects through local zoning, site plan review, utility, environmental, building and conservation procedures. Indeed, the Town of Sudbury’s appeal of the Energy Facilities Siting Board’s decision approving Eversource’s transmission line is currently pending before the SJC, No. SJC-12997. 

Jessica Gray Kelly is a partner at the Boston office of Freeman Mathis & Gary, LLP.  She represents clients in complex commercial litigation, land use disputes, and professional liability matters. She also advises clients on risk reduction and management and dispute resolution. 


Three Years or You’re Out: SJC Limits MassHealth Estate Recovery Claims

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by Meredith A. Fine

Case Focus

In In the Matter of the Estate of Kendall, 486 Mass. 522 (2020) (“Kendall”), the Supreme Judicial Court (“’SJC”) held that MassHealth has three years from a beneficiary’s death to file its claims for reimbursement on estates or the claim is barred.

Background

MassHealth filed a claim against the estate of Jacqueline Ann Kendall more than three years after Ms. Kendall died intestate on August 7, 2014.  At the time of her death, Ms. Kendall owned a one half interest in a house and had received $104,738.23 in MassHealth benefits, which payments were subject to recovery by MassHealth from her estate.

More than three years after her death, on May 24, 2018, an heir filed a Petition for Late and Limited Testacy in the Probate & Family Court, seeking appointment as the personal representative. As required by statute, a copy of the probate petition was mailed to the Division of Medical Assistance (the “Division”), the state Medicaid agency that administers the MassHealth program. MassHealth notified counsel for the probate petitioner it would file a notice of claim in the estate. The estate rejected the claim as untimely.

MassHealth filed objections asserting its rights to present and recover claims under the Massachusetts Uniform Probate Code, G. L. c. 190B (the “Probate Code”), even after the three-year bar on creditor claims established under § 3-108 (4), and the one-year creditor filing deadline established under § 3-803 (a). MassHealth also filed a petition for formal probate requesting the appointment of a public administrator as the personal representative so that the MassHealth claim could be paid.

In April 2019, after a judge of the Probate and Family Court certified a series of questions to the Massachusetts Appeals Court, the SJC transferred the case on its own initiative. The National Academy of Elder Law Attorneys, joined by the Real Estate Bar Association, filed an amicus brief in support of the position taken by Ms. Kendall’s estate.

The SJC’s Decision

Justice Scott L. Kafker, writing for a unanimous Court, held that the Probate Code § 3-108 (4) prohibits the filing of any claims other than expenses of administration in estates after three years from the date of death, and also prohibits the personal representative from paying such late presented claims. In its 21-page decision, the SJC first reviewed the statutory background of the Probate Code and the MassHealth Estate Recovery program and determined that although the Legislature provided MassHealth with various advantages over other creditors, it did not exempt MassHealth from the three-year “ultimate time limit” on the filing and payment of all creditors’ claims against estates established in § 3- 108 of the Probate Code. Kendall, 486 Mass. at 523.

‘Plain and clear language’

In explicating the statutory scheme under well-established principles of statutory construction, the SJC’s 21-page decision emphasized that the three-year time limit is critical to the Commonwealth’s longstanding policy of “promoting a speedy and efficient system for liquidating the estate of the decedent and making distribution to the decedent’s successors” that is embodied in G. L. c. 190B, § 1-102 (b) (3)Kendall, 486 Mass. at 526.

The Court reasoned that the Legislature knew how to exempt MassHealth from requirements that applied to other creditors, but specifically did not include an exemption for the Division from the three-year limit on creditors’ claims set forth in § 3-108 of the Probate Code which “functions essentially as a statute of repose” and has “the effect of placing an ‘absolute time limit’ on liability.” Kendall, 486 Mass. at 528 (“Where the Legislature intended for differential treatment for MassHealth in the probate process, it did so expressly.”).

The Court continued, “The three-year ultimate time limit is a critical provision ensuring the orderly settlement and liquidation of estates in a relatively expeditious manner. We conclude that if the Legislature intended to create an exception for MassHealth to this ultimate time limit, it would have done so expressly in that particular provision.”  Id. Indeed, the language of the Probate Code establishing the ultimate time limit and limiting the powers of the personal representatives in late and limited testacy is “plain and clear.”  Id.

The Court gave significance to the fact that creditors, including MassHealth, have the power to open estates in order to preserve claims, “provided that the petition for an appointment of a personal representative was filed prior to the expiration of the ‘ultimate time limit’ of § 3-108.” Kendall, 486 Mass. At 531. However, the Court rejected MassHealth’s argument that limiting the time to file claims would violate federal Medicaid rules. “Nothing in the Federal law requires, as MassHealth claims, that MassHealth go beyond the bounds of State law to recover the maximum possible extent of its benefits.” Id. at 533 (citing to Daley v. Secretary of the Executive Office of Health & Human Servs., 477 Mass. 188, 204 n. 15 (2017), describing how state has limited right to recover probate assets consistent with federal Medicaid law).

The Court also acknowledged but dismissed MassHealth’s argument about unfairly shifting an undue burden to the Division to track the status and receipt of notice of the deaths of beneficiaries who are not in long-term care facilities. The Court observed that most estates will be settled quickly, and that MassHealth with due diligence should be aware when benefits to its clients cease and can cross-match this information with public death records or undertake direct inquiry to ascertain a beneficiary’s status as MassHealth’s Estate Recovery Unit already takes steps to do.

In addressing MassHealth’s argument that heirs would wait out the three-year period to avoid reimbursing MassHealth, the Court pointed out that the Legislature had already examined that possibility and deemed the scenario unlikely and the associated risk low. “The Legislature’s risk assessment and overall cost-benefit analysis is entitled to respect.” Id. (quoting from official comment to G. L. c. 190B § 3-803).

Conclusion

The SJC has answered:  The Massachusetts Uniform Probate Code is clear that more than three years from the date of death, a personal representative has the power only to sign title documents and pay estate administration expenses, and MassHealth is not exempt from the three-year “ultimate time limit” for bringing creditors’ claims against estates. Indeed, if MassHealth’s arguments prevailed, estates would never close.  And, personal representatives of estates would never be freed from their duties and personal liability, and the estate’s interest in assets, such as real estate, would never be fully released. In Kendall, the Court affirmed that the obligation of timely filing estate claims rests squarely on the shoulders of the creditor, in this case MassHealth, as the Legislature intended. At some point, estates must close.

Meredith A. Fine, Esq., has offices in Gloucester and Ipswich, where her practice focuses on real estate, litigation, and business counseling. She can be reached through her website, capeannlegal.com. Winning the Kendall case was the highlight of her career to date but not as exciting as the NY Mets winning the World Series in 1969.