Owning The Space: A Candid Conversation with Supreme Judicial Court Associate Justice Kimberly S. Budd

by Sophia Hall and Justice Kimberly S. Budd

Voice of Judiciary
*This interview is a companion piece to “Walk in My Shoes: A Day in the Life of a Black Woman Attorney” by Danielle Johnson.

 

I was fortunate to recently talk with Justice Kimberly S. Budd about her career path and her experiences as a woman of color in the legal profession.

SH: What drew you to the law?

KB: I was lucky in that my Dad was a lawyer so he exposed me to the law. I have to admit, though, that when I was a kid, I did not really have an understanding of what a lawyer did. I do remember going in to work with him on the weekends, and helping him by pulling files. That’s what I grew up in. When I graduated from college, I went on to law school because I didn’t know what else to do (I majored in English). In hindsight, I wish I had taken a year to work between college and law school. I felt really young and inexperienced in law school.

SH: Has your identity as a woman of color affected your experience as a judge?

KB: I think it is fair to say that being a woman of color affects every part of my life, including being a judge.  The piece written by Danielle Johnson about her experiences in Housing Court brought back similar memories of my experience as a young litigator.  I have been mistaken for a defendant’s girlfriend by a court officer, and have been underestimated by countless numbers of opposing counsel over the years.

As a judge in Superior Court, it was clear that attorneys, litigants and jurors were not expecting to see a Black woman judge when they came into the courtroom.  I remember one particular afternoon I was sitting in a civil motion session in Middlesex County and working with a Black woman courtroom clerk and a Black woman court officer.  I think those who had business in the “D” session that afternoon were surprised to see our team!

When I handled criminal cases, many of the defendants were Black.  I like to believe that it made a difference for them to see someone who looked like them on the bench,  especially if everyone else in the courtroom was White.

SH: What was your experience with Judicial Evaluations?

KB: State court trial judges are evaluated periodically by practitioners who are surveyed anonymously.  The evaluations have both objective and subjective components, resulting in a numerical rating, and written comments. In 2014 a review of the judicial evaluations showed that judges who were of color and women judges consistently received lower ratings than White male judges.  Attempts were made to figure out how to account for bias, implicit or otherwise.  We haven’t come up with a solution, and I’m not sure that there is one.  The evaluations reflect the biases that exist in our society.

I have to admit that whenever I received my evaluation results, it was difficult to look at the comments.  Many were good, but it was the negative ones that consumed my attention.  After my first evaluation I stopped looking at the written comments altogether.

SH: You are the third African American ever appointed to the SJC, correct?

KB: Yes, and the second Black woman. Chief Justice Rodrick Ireland was the first African American appointed to the court in 1997 (the first in the Court’s over 304 year history).  He subsequently became the Chief Justice in 2010.  He was an excellent chief—and a great leader; everyone thought he did an amazing job. He was cognizant of the fact that his performance likely would affect the way judges of color who came after him would be perceived.. When Chief Justice Ireland retired, Justice Geraldine Hines replaced him and was the first African American woman.

SH: Can you describe your relationship with Justice Hines?

KB: I have been fortunate to know Gerri for a long time.  She started in the Superior Court, back in 2001.  I remember attending her swearing in ceremony when she first became a judge and being so excited for her and for the Commonwealth.  Little did I know that eight years later I would be her colleague on the Superior Court.  She was my mentor there, and again when I joined the SJC.  It makes such a difference when you have someone in your corner showing you how to do the job, answering your questions and rooting for you to succeed. Her presence on the SJC when I arrived was huge. And her absence is still felt (she retired in 2017).  She is only a phone call away though!

SH: The future of the SJC. Do you see more diversity coming?

KB: I sure hope so.

I would hate to think that anyone would use my presence on the Court to support an idea I am one of just a handful of people of color who are qualified to be a Justice of the Supreme Judicial Court.  That certainly is not the case.  I also cringe when I think there are some who might believe that I am here only because they needed a Black person to fill a slot. Even though diversity and inclusion are and should be priorities for the Commonwealth’s judiciary system and in many workplaces, I believe that I hold my own on the SJC. I am not just taking up space.  And like Danielle, I work every day to prove it.

 

Kimberly S. Budd is an Associate Justice for the Massachusetts Supreme Judicial Court (“SJC”), where she has served for nearly four years, and a former Justice of the Massachusetts Superior Court. She was appointed to the Superior Court by Governor Devall Patrick in 2009. Justice Budd was a litigation associate at Mintz Levin, an Assistant United States Attorney in the United Stated Attorney’s Office for the District of Massachusetts, and a University Attorney for Harvard University in the General Counsel’s Office. She also worked at Harvard Business School as the Director of Community Values. Justice Budd earned her bachelor’s degree in English from Georgetown University and her law degree from Harvard Law School.


Can Law Enforcement Officers Commit Any Crime While Off-Duty and Retain Their Pension?

by Michael Sacco

Case Focus

In a unanimous decision in two companion cases, Essex Regional Retirement Board v. Swallow and State Board of Retirement v. O’Hare, 481 Mass. 241 (2019) (Swallow/O’Hare), the Supreme Judicial Court (SJC) has determined that a law enforcement officer will not be required to forfeit his pension after a criminal conviction unless there is a direct link — either factual or legal — between the officer’s off-duty conduct and his position. This is the same standard to which other public employees in Massachusetts are held. This decision startled many in the public pension community. Only the legislature may change the standard to which law enforcement officers are held, by expanding the pension forfeiture statute’s narrow scope.

A Brief History of the Public Pension Forfeiture Law

Pension forfeiture provisions have existed in the retirement statute since the retirement law was codified in Chapter 32 of the Massachusetts General Lawsin 1945. The statute states that if a public employee is convicted of certain enumerated statutory offenses or misappropriation of the employer’s funds or property, the employee forfeits any right to a pension and receives a return of any contributions made to their annuity savings account. In 1986 however, the SJC held in Collatos v. Boston Retirement Board396 Mass. 684 (1986), that the legislature intended G. L. c. 32, § 15 (3A) to require forfeiture of a public employee’s pension only if the employee was convicted of two state crimes, G. L. c. 268A, § 2 (corrupt gifts, offers or promises to influence official acts, corruption of witnesses) and G. L. c. 265, § 25 (attempted extortion), and thus the  public employee’s guilty plea to violating 18 U.S.C. Section 1951 (extortion) would not require pension forfeiture. The SJC construed the statute narrowly because of its penal character.

Shortly after the Collatos decision, the legislature amended the statute by inserting G. L. c. 32, § 15 (4), which provided an intermediate level of pension forfeiture if the criminal conviction was a “violation of the laws applicable to his office or position.” While Section 15 (3A) required a complete forfeiture of pension rights, Section 15 (4) provided that a pension forfeiture would entitle the public employee to a return of his accumulated total deductions (funds withheld from the employee’s weekly check and paid to the retirement system), less any interest accrued thereon.

The first SJC decision interpreting Section 15 (4) was Gaffney v. Contributory Retirement Appeal Board, 423 Mass. 1 (1996). In Gaffney, the SJC held that a pension forfeiture was warranted when the superintendent of the Shrewsbury water and sewer department was convicted of larceny by common scheme for stealing the Town’s money and property. Id. The SJC acknowledged that the legislature did not intend that a pension forfeiture should follow any and all criminal convictions. Id. at 5. Rather, “the substantive touchstone intended by the General Court is criminal activity connected with the office or position. . . . Looking to the facts of each case for a direct link between the criminal offense and the member’s office or position best effectuates the legislative intent of § 15 (4).” Id. In Gaffney, the direct factual link between his employment and his criminal conviction was clear, and thus pension forfeiture was warranted.

Criminal Activity Not Limited to On-Duty Conduct

In Maher v. Justices of the Quincy Division of the District Court Department, 67 Mass. App. Ct. 612 (2006), the Appeals Court determined that a public employee’s off-duty criminal conduct can result in pension forfeiture even if the criminal conviction did not involve a violation of a statute that specifically pertains to public employees or, unlike Gaffney, did not involve misappropriating the employer’s funds or property. In Maher, the plaintiff was the chief plumbing and gas inspector for the City of Quincy. Id. at 613. He and another city employee broke into and entered the personnel office at city hall. There, the plaintiff reviewed his personnel file and stole a document or documents from the file. A few weeks later, a new mayor took office. The plaintiff took superannuation retirement and subsequently pleaded guilty breaking and entering in the daytime with intent to commit a felony, wanton destruction of property, and stealing personnel records and various documents. Id. His pension was forfeited, and the Appeals Court upheld the pension forfeiture, specifically referencing Gaffney and stating that the statutory requirement that the criminal activity be connected with the office or position “does not mean that the crime itself must reference public employment or the employee’s particular position or responsibilities.” Id. at 616.

The Durkin and Finneran Decisions

Similarly in Durkin v. Boston Retirement Board, 83 Mass. App. Ct. 116 (2013), a law enforcement officer’s off-duty conduct resulted in forfeiture of his pension. Paul Durkin was a Boston Police Officer who became inebriated off-duty and used his service revolver to shoot a fellow off-duty police officer who was giving him a ride home. Id. at 117. Durkin pleaded guilty to assault and battery by means of a dangerous weapon, and the Boston Retirement Board forfeited his rights to a pension. Id. The Appeals Court upheld the retirement board’s decision, noting that “Durkin engaged in the very type of criminal behavior he was required by law to prevent. This violation was directly related to his position as a police officer as it demonstrated a violation of the public’s trust as well as a repudiation of his official duties. Clearly, at the heart of a police officer’s role is the unwavering obligation to protect life, which Durkin himself recognized at his hearing. His extreme actions violated the integrity of the system which he was sworn to uphold.” Id. at 119.

In State Board of Retirement v. Finneran, 476 Mass. 714 (2017), the SJC discussed the pension forfeiture statute’s twenty-year evolution into two recognized types of “direct links” between a public employee’s position and the crime committed: factual links and legal links. In cases involving factual links, a public employee’s pension is subject to forfeiture under Section 15 (4) only when there is a direct factual connection between the public employee’s crime and position. Id. at 720-21. Surprisingly, the court cited the Durkin case as an example of a direct factual link, noting that that crime had been committed with the police officer’s service revolver. Id. at 721. In cases involving direct legal links, forfeiture is mandated under Section 15 (4) when a public employee commits a crime directly implicating a statute that applies to the employee’s position. Id.

Swallow and O’Hare in the Appeals Court

The Durkin and Finneran decisions implied that the plaintiff in Durkin may have kept his pension had he merely committed the offense with his personal weapon. In Swallow, a police officer who was on administrative leave was with his wife at their home. Swallow/O’Hare, 481 Mass. at 243. Swallow was drinking heavily and, after an argument, he grabbed his wife by the shirt, yelled at her, and waved his personal handgun in her face. Id. As she left the home and walked to a neighbor’s driveway, she heard a single gunshot. Id. Swallow was subsequently arrested and ultimately pleaded guilty to assault and battery, discharge of a firearm within 500 feet of a building, assault by means of a dangerous weapon, multiple counts of improper storage of a firearm, and intimidation of a witness. Id. The retirement board forfeited Swallow’s pension, largely relying on Durkin. Id. Although the District and Superior Courts reversed the retirement board’s decision, the Appeals Court reinstated it, noting that Swallow’s “use of a gun to threaten another’s life violated the public’s trust and repudiated his official duties.” Id. at 244. See Essex Reg’l Ret. Bd. v. Justices of the Salem Div. of the Dist. Ct. Dep’t91 Mass. App. Ct. 755, 760 (2017).

Finally, in O’Hare, a state trooper communicated online with, and eventually arranged to meet with, an individual whom he believed to be a fourteen-year-old boy but was actually an undercover agent with the Federal Bureau of Investigation (FBI). Swallow/O’Hare, 481 Mass. at 244. The FBI arrested O’Hare and he pleaded guilty to a charge of using the Internet to attempt to coerce and entice a child under the age of eighteen years to engage in unlawful sexual activity. Id. The retirement board forfeited O’Hare’s pension rights, finding that his conviction went “directly to the heart” of his responsibilities and obligations as a state police trooper. Id. The District and Superior Courts reversed the retirement board’s decision. Id. at 244-45. Like the posture of Swallow, the Appeals Court reversed, holding that forfeiture was required because O’Hare’s conduct violated the fundamental tenets of his role as a state police trooper, because protecting the vulnerable, including children, is at the heart of a police officer’s role, and this repudiation of his official duties violated the public’s trust and the integrity of the Massachusetts State Police. Id. at 245. See State Bd. of Ret. v. O’Hare92 Mass. App. Ct. 555, 559 (2017).

SJC Changes Course

As perhaps prophetically foretold in the reference to Durkin in the Finneran case, the SJC reversed both Swallow and O’Hare along similar lines. With respect to Swallow, the SJC held the retirement board should not have relied on Durkin for the proposition that forfeiture is mandatory after “a police officer violates the public trust and shirks his or her official duties.” Although Durkin discussed the fundamental nature of the police officer’s position and noted that the officer had violated the public trust by “engag[ing] in the very type of criminal behavior he was required by law to prevent,” forfeiture was ultimately grounded on the factual connections between the officer’s position and the criminal activity. Swallow/O’Hare, 481 Mass. at 251. In O’Hare, the SJC rejected the retirement board’s argument that there is an exception to the proposition that pension forfeiture should not follow “as a consequence of any and all criminal convictions” for law enforcement officials because of their “special position” in our society. In rejecting this position, the SJC stated emphatically, “[t]his is precisely the kind of unfettered breadth that we have consistently avoided.” Id. Accordingly, in both cases the SJC acknowledged the repugnant nature of the criminal offenses, but nevertheless reinstated the pensions. Id. at 254. In O’Hare, the SJC also summarily rejected the argument that there was a “legal link” between the criminal conduct and a violation of the “laws” applicable to State police. Id. at 252-53. The retirement board, relying on State Board of Retirement v. Bulger, 446 Mass. 169 (2006), in which the SJC found that perjury and obstruction of justice convictions violated the Code of Professional Responsibility for Clerks of the Courts and thus were a violation of the laws applicable to the office or position, had posited that the “laws” applicable to State police include the rules and regulations issued by the colonel of the State police pursuant to G. L. c. 22C §§ 3 and 10. O’Hare at 252. It argued that they function as a “code of conduct” and require that State troopers “avoid conduct that brings the State police into disrepute and obey all laws of the United States and the local jurisdiction.” Id. at 252. Unpersuaded, the SJC found that if the legislature wanted to include rules and regulations that do not have the force of law, it would have said so, as it had in the preceding section of the statute. Id. at 252-53. The SJC distinguished the circumstances in Swallow and O’Hare from the holding in Bulger, where a clerk-magistrate committed perjury in violation of the Code of Professional Responsibility for Clerks of Court — because the Code has “the force of law.” Id. at 253.

Many were surprised by the SJC’s refusal to hold police officers to the higher standard under pension forfeiture laws that had previously been applied to discharge for off-duty conduct, such as in Police Commissioner of Boston v. Civil Service Commission, 39 Mass. App. Ct. 594, 601 (1996) (officer lost his firearm while intoxicated and verbally abused other officers); McIsaac v. Civil Serv. Comm’n38 Mass. App. Ct. 473, 475-76 (1995) (officer negligently handled firearm while intoxicated and verbally abused other officers); Comm’rs of Civil Serv. v. Mun. Ct. of the Brighton Dist., 369 Mass. 166, 170-71 (1975), and Patuto v. Comm’rs of Civ. Ser., 429 U.S. 845 (1976) (upholding discharge of off-duty police officer who accompanied others while they uttered forged money orders). Perhaps less surprising is the SJC’s rejection of the argument that pension forfeiture can be triggered under Section 15 (4) by a violation of a rule or regulation or code of conduct which does not have the force of law. Implicit in its ruling, however, is that had the statute so provided, pension forfeiture would have surely resulted in O’Hare.

Looking Forward

Unless the legislature further amends Section 15 (4), police officers will be treated no differently than other public employees in assessing pension forfeiture for criminal activity. Interestingly, legislation has been filed to further restrict the scope of Section 15 (4). If enacted, it would limit a complete pension forfeiture to cases in which the prosecutor included such a penalty in the sentencing recommendation, and in the absence of such a recommendation, the local retirement board could implement a partial forfeiture based on its discretion and the facts and circumstances of the particular criminal conviction. In my view, the Legislature should follow the Court’s lead in extending the pension forfeiture’s statute’s reach to off-duty law enforcement officers’ conduct as it has in upholding employment termination proceedings. As the Appeals Court noted in Police Commissioner of Boston v. Civil Service Commission, 22 Mass. App. Ct. 364, 371 (1986): “Police officers must comport themselves in accordance with the laws that they are sworn to enforce and behave in a manner that brings honor and respect for rather than public distrust of law enforcement personnel. They are required to do more than refrain from indictable conduct. Police officers are not drafted into public service; rather, they compete for their positions. In accepting employment by the public, they implicitly agree that they will not engage in conduct which calls into question their ability and fitness to perform their official responsibilities.” See also Falmouth v. Civ. Serv. Comm’n, 61 Mass. App. Ct. 796, 801-802 (2004) (“[p]olice officers must … behave in a manner that brings honor and respect for rather than public distrust of law enforcement personnel.  This applies to off-duty as well as on-duty officers.”)  While I recognize the financial impact a pension forfeiture will often have on the pensioner’s family, that should be a consideration before the law enforcement officer commits a crime that puts their family at perilous financial risk.

 

Attorney Sacco founded the Law Offices of Michael Sacco, P.C. on March 20, 2006, having practiced in various Boston law firms in the preceding 12 years. Since entering private practice in 1994, Attorney Sacco’s practice has focused exclusively in the representation of public pension systems in Massachusetts.


The 2016 Massachusetts Code of Judicial Conduct: Judicial Engagement with the Organized Bar

cohen_cynthiaberenson_barbaraby Hon. Cynthia Cohen and Barbara F. Berenson

Heads Up

In October 2015, the Justices of the Supreme Judicial Court (“SJC”) adopted a new Massachusetts Code of Judicial Conduct, effective January 1, 2016 (“new Code” or “2016 Code”).  The new Code is the culmination of three years of study by a committee of judges, lawyers, and academics, who were appointed by the SJC to study the previous, 2003 Massachusetts Code of Judicial Conduct (“predecessor Code” or “2003 Code”) and to recommend changes in light of the American Bar Association’s 2007 Model Code (“2007 ABA Model Code”).  The committee was fortunate to have among its members three prominent bar leaders:  Attorney Lisa Goodheart and Professor Renee Landers, both past Presidents of the BBA, and Attorney Michael Greco, a past President of both the MBA and the ABA.  Bar associations and individual members of the bar also provided invaluable feedback and suggestions during the public comment period.

The 2016 Code differs substantially from the predecessor Code in both form and substance.  It closely resembles the 2007 ABA Model Code in structure and overall philosophy, but it also contains a significant number of nonconforming provisions, often because the departure is more suitable for a state that does not elect its judges.  A summary of key new and revised provisions is available for review on the website of the Massachusetts Judicial Branch, as is the committee’s Report.

An important difference between the 2016 Code and the predecessor Code pertains to judicial participation in outside activities.  To a large extent, the 2003 Code shielded judges from interactions with the public, in the belief that judicial isolation would best ensure the independence, integrity, and impartiality of the judiciary.  In contrast, the 2016 Code recognizes the value and importance of judicial outreach and affirmatively encourages judges to participate in community activities, so long as they are consistent with a judge’s fundamental obligation to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and that avoids impropriety and the appearance of impropriety.

This new philosophy is particularly evident in rules bearing on judicial engagement with the organized bar.  Early on, in Canon 1, the new Code makes clear that judges are affirmatively encouraged to “participate in activities that promote ethical conduct among judges and lawyers, support professionalism within the judiciary and the legal profession, and promote access to justice for all.”  Rule 1.2, Comment [4]. Later, in Canon 3, Rules 3.1 and 3.7 offer specific guidance concerning a judge’s participation in extrajudicial activities, including those of bar associations.  Rule 3.1 permits a judge to “engage in extrajudicial activities, except as prohibited by law or this Code,” albeit with some general cautions.  For example, the activities must not interfere with the proper performance of the judge’s judicial duties or lead to recurrent disqualification.  That said, as long as the concerns of Rule 3.1 are satisfied, Rule 3.7 encourages judges to participate in activities that “foster collegiality among the bar and communication and cooperation between the judiciary and the bar.”

This encouragement specifically extends to speaking about the administration of justice at bar association events.  Rule 3.7, Comment 1[B].  In a departure from the predecessor Code, a judge ordinarily may do so even when the event is held in space provided by a law firm or is financially supported by one or more for-profit entities, such as law firms or legal vendors, that do substantial business in the court on which the judge sits.  Ibid.  The rationale for this liberalization is that some bar associations, particularly affinity bar associations with smaller memberships, may not be in a financial position to hold events without the support of private sponsors or the use of law-firm space.  The Code cautions, however, that the judge must avoid giving the impression that the sponsors of an event are in a special position to influence the judge.  Rule 3.7, Comment [1A].

The 2016 Code also relaxes what had been an outright  prohibition on a judge serving as a featured speaker or receiving an award or other comparable recognition at a fundraising event of a law-related organization.  A judge is now permitted to speak or be honored if the event is sponsored by a law-related organization that promotes the general interests of the judicial branch of government or the legal profession, including enhancing the diversity and professionalism of the bar.  Rule 3.7(A)(6A).  As explained in Comment [4], general interest organizations include, for example, state bar associations, city or county bar associations, affinity bar associations, and bar associations that specialize in particular practice areas but whose members take positions on both sides of disputed issues.

The 2016 Code continues to prohibit a judge from serving as a featured speaker or receiving an award at other fundraising events, but more narrowly defines that term.  Under the new Code, a fundraising event is one where the organizers’ chief objectives include raising money to support the organization’s activities beyond the event itself; unless that definition is met, an event is not considered to be a fundraising event, even if the revenues from the event ultimately exceed the costs.  Rule 3.7, Comment [3].

The 2016 Code also modifies the rules governing a judge’s acceptance of invitations to attend without charge a luncheon, dinner, reception, award ceremony, or similar event held by a law-related organization in Massachusetts.  A judge may now accept such invitations without having to obtain a written determination from the Chief Justice of the court on which the judge sits that acceptance will serve a legitimate public purpose; instead, the Code presumes that a judge’s attendance at such events will serve a public purpose.  The intent of this provision is to make it less burdensome for judges and their Chief Justices to facilitate judicial attendance at local bar events.  In other instances, judges remain required to obtain determinations from their Chiefs before accepting complimentary invitations.  See Rule 3.14.

At the same time that the SJC adopted the new Code, it also revised SJC Rule 3:11, which governs the Committee on Judicial Ethics.  Among other things, the revised rule provides that the Justices may from time to time issue an Ethics Advisory to elucidate the meaning or application of a provision of the Code and to expound upon provisions that are of broad interest and application. SJC Rule 3:11(4).  Groups of judges and lawyers, including bar associations, may request an Ethics Advisory, but the court may decline to render one for any reasons it deems sufficient.  Ibid.  Although the Committee on Judicial Ethics will continue to render Informal Opinions and Letter Opinions (formerly known as Advisory Opinions) only to judges, by offering bar associations the opportunity to seek clarification of Code provisions, the new rule recognizes that issues of judicial ethics are of great interest and importance to the bar as well as the judiciary.

Hon. Cynthia J. Cohen is an Associate Justice of the Appeals Court.  She chaired the committee that drafted and recommended the adoption of the 2016 Massachusetts Code of Judicial Conduct, and currently chairs the Committee on Judicial Ethics.

Barbara F. Berenson is a senior attorney at the Supreme Judicial Court. She staffed the committee that drafted and recommended the adoption of the 2016 Massachusetts Code of Judicial Conduct, and is currently staff counsel to the Committee on Judicial Ethics.

 


The New “Documents Only” Subpoena Under Recently Amended Mass. R. Civ. P. 45

Maycotte_Carlosby Carlos A. Maycotte

Heads Up

Earlier this year, the Supreme Judicial Court amended Rule 45 of the Massachusetts Rules of Civil Procedure, which concerns subpoenas. The main purpose of the amendments is to give Massachusetts practitioners the ability to issue “documents only” subpoenas to non-parties. Now, attorneys need no longer notice depositions of non-parties when the only goal is to obtain production of documents.

The amendments were effective as of April 1, 2015. Before that date, attorneys in Massachusetts followed a convoluted procedure: a notice of deposition and a subpoena duces tecum were served on a non-party, commanding that non-party to appear at a Keeper of the Records deposition with the specified documents. The non-party would instead send the documents outlined in the subpoena duces tecum (with a sworn certification) to the issuing attorney, who would then waive the non-party’s appearance at the deposition. The issuing attorney would then have the documents and the non-party would never appear at a deposition.

To streamline the process, the Supreme Judicial Court amended Mass. R. Civ. P. 45 to track the language of and the procedure described in the Federal Rules of Civil Procedure. The amendment eliminates the superfluous steps described in the previous paragraph by creating a new class of subpoenas. Now, the attorney may serve a “documents only” subpoena, and the person receiving it “need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.” The subpoenaed party can simply send the documents to the issuing attorney.

Where the previous incarnation of Mass. R. Civ. P. 45(a) provided generally that a subpoena shall “command each person to whom it is directed to attend and give testimony at a time and place therein specified,” the amended rule provides greater detail, stating that a subpoena shall “command each person to whom it is directed to do the following at a specified time and place: to attend and give testimony; to produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control; or to permit inspection of premises.” By listing the several purposes for which a subpoena may be issued, the amendment has created new categories of subpoenas that can be targeted for a more economical civil practice.

The new procedure for issuing “documents only” subpoenas in the amended Mass. R. Civ. P. 45(b) further provides that commands to produce documents or electronically stored information may be set out in subpoenas separate from those that command attendance, and that the subpoena “may specify the form or forms in which electronically stored information is produced.” Practitioners will be able to use this provision to require that the document production be made in a specified format, so that they are able to compile and review documents more effectively.

The amended rule also provides certain protections for non-parties. The reporter’s notes recognize that the person receiving a subpoena may have “no stake in the case” and may not have the assistance of counsel. Thus, a party issuing a subpoena “must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” A non-party on whom a subpoena is issued has 10 days from the date of service to object to the subpoena and must serve the objection on all parties. After an objection has been made, the burden shifts to the issuing party, who must then justify the need for the documents via a motion to compel. In practice, Massachusetts courts have generally been protective of non-parties in the discovery context, and these protections will likely be reinforced by the amended rule.

At the same time, the amended Mass R. Civ. P. 45(c) specifies that the requirement to tender fees to a person served with a subpoena does not apply to cases where the person is not commanded to appear – meaning that while a non-party may have an easier time complying with a subpoena, he or she may not receive a fee, however nominal, for doing so.

Although the amendments to Mass R. Civ. P. 45 align the Massachusetts rule more closely to the federal rule, important differences remain. Mass R. Civ. P. 45(d)(1) provides that prior to the service of a “documents only” subpoena on a third person, a copy of the subpoena must be served on all parties to the case. This differs from the federal rule, which requires that both notice and a copy of the subpoena be served on all parties to the case. The Massachusetts rule eliminates an unnecessary step, allowing a copy of the subpoena to operate as adequate notice that a subpoena has been served. Unlike the federal rule, this provision in the Massachusetts rule also tasks the issuing party with serving copies of any objection to the subpoena on all parties. In addition, the issuing party must serve all other parties with either notice that a production was made or an actual copy of the documents produced.

These amendments should help make civil procedure more efficient. By eliminating the need to notice a deposition and issue a subpoena to non-parties from whom only documents are needed, less paperwork will be required from issuing parties. The streamlined procedure will save practitioners time, and clients, money. The amendment to Mass R. Civ. P. 45 should be well received by Massachusetts attorneys.

 

Carlos A. Maycotte is an associate at Sally & Fitch LLP, where he works primarily in the areas of family law, international arbitration and litigation, and general civil litigation.


A Fond Farewell from Chief Justice Ireland

Ireland_Roderickby Roderick L. Ireland

Voice of the Judiciary

When I retired at the end of July of 2014, my judicial service had spanned three court departments and thirty-seven years – thirteen years at the Boston Juvenile Court, seven years at the Appeals Court, and seventeen years at the Supreme Judicial Court, the last four as Chief Justice.  A number of people asked me to reflect on my experiences and share what I learned during that time.  As I thought about it, I decided that I wanted to give voice to my time as Chief Justice, since that represented such a unique experience.

It has been quite a journey.  In my Boston Juvenile Court days, sitting in what was then called the “Old Courthouse,” my courtroom was so cold in the winter that I wore an overcoat and scarf under my robe, and the clerk had to wear gloves to punch the keys of her typewriter.  I remember looking up from the ground floor of that building to the upper floors of the great hall, never thinking that one day I would be on those upper floors, in a beautifully rehabbed  “John Adams Courthouse,” looking down to the space where I started out.  For me, as the first person of color to serve on the oldest appellate court in the western hemisphere, to be appointed its Chief Justice was not only a great honor, but also a heavy responsibility.

It was one thing to serve as an associate justice, but quite another to serve as Chief Justice, and I did not go into it lightly.  In fact, when Governor Deval Patrick first wanted to nominate me, I turned the offer down.  I knew what the stakes would be for me personally, as a person of color.

Fortunately, Mo Cowan, the Governor’s Chief Legal Counsel and later his Chief of Staff, was a persistent advocate, and after many conversations over several weeks, I was persuaded to reconsider and to accept the nomination.  As he pointed out to me, it was an historic opportunity, and there was no telling when another opportunity for a person of color to be Chief Justice would occur.

In spite of my reservations, I took the plunge.  I have to say that I feared that any mistakes I made would not only reflect on me, but also would make it more difficult for other people of color to follow me.  What would be the point of being the first, if there would never be a second?   So, for me, doing a good job was critical.  That was my goal every day.  Looking back, I am pleased with how things worked out and proud of what we accomplished.  But there were challenges.

When I started as Chief Justice, the Judiciary was in the midst of a hiring freeze that had gone on for more than two years.  Morale was at an all-time low because employees were being asked to do their own work and then take on extra work as a result of vacancies that could not be filled.

On top of that, the Justices had recently received a report from Independent Counsel Paul Ware about hiring and promotion in the Probation Department.   The report concluded that the Commissioner of Probation had engaged in corrupt hiring that favored politically connected candidates, and indictments followed.  Commissioner John O’Brien and Deputy Commissioner Elizabeth Tavares were eventually convicted of mail fraud, racketeering, and conspiracy to engage in racketeering; and Deputy Commissioner William Burke was convicted of conspiracy to engage in racketeering.

At the time, the Governor proposed that the Probation Department be moved from the Judicial to the Executive Branch. On the day I was nominated to be Chief Justice, even before I was sworn in, I was asked by the media about my position on moving Probation to the Executive Branch.  I had to respectfully disagree with the Governor before my first day as Chief Justice.  As it turned out, the Governor did not give up on this idea, and made the same proposal the following year, which meant that I had to publicly disagree with him a second time.  Currently, the Probation Department remains under the authority of the Judicial Branch.

When I began as Chief Justice, the judiciary’s relationship with the Legislature was “cool,” to say the least, and our budget was significantly below what we needed just to stay afloat.  We faced the likelihood of reducing court sessions, laying off employees, or a combination of those difficult options.  To state the obvious, those were challenging times.

In my first Annual Address, which I gave in October of 2011, I indicated that I had three main objectives as head of the third branch of government: first, to build bridges with the courts’ constituents, including the Legislature; second, to make the court system more user-friendly and responsive to the public; and third, to educate the public, particularly our youth, about how the legal system operates.

From my first day as Chief, reaching out to the Legislature was a major priority.  We organized two first-of-their-kind programs – an orientation program for new members of the Legislature, and a similar one for legislative staff.  I visited regularly with Legislative Leadership, as well as the rank and file members of the House and Senate, sometimes spending several hours a week at the State House.  We worked with the Speaker on the legislation creating the new position of the Court Administrator to bring professional management expertise to the Judicial Branch.  The Justices also adopted the recommendations for transparency in hiring and promotion practices in the “Harshbarger” action plan.   And I met regularly with the Governor and his staff to share information, exchange ideas, and to advocate for proper funding for the courts.

Through our efforts we were able to secure an adequate budget to fund the work of the court system, and we have been able to fill some of the critical positions.  Our efforts also resulted in a pay raise for judges and clerks – the first in eight years.  Based on my regular visits to courthouses across the Commonwealth to thank the staff for their work, I can see that morale of court staff has noticeably improved.

We also built bridges with the business community, meeting with the CEOs of the biggest businesses to discuss the court system, emphasizing the importance of the Business Litigation Session of the Superior Court.  We described how it was in their best interests that courts have proper resources in order to ensure speedy and fair resolutions of their legal issues.  We pointed out that it was also in their employees’ best interests to have a legal system that would provide speedy and fair resolution to their personal legal problems, because the sooner they were resolved, the more “present” the employees would be at work.

We enlisted support from the bar associations, to encourage their members to advocate for adequate funding for the judiciary and to share information on court initiatives.  The Justices partner yearly with the Massachusetts Bar Association, the Boston Bar Association, and others, to “Walk to the Hill,” as part of Court Advocacy Day.  Our collaboration with the Bar means a great deal to the members of the Judiciary.

We endeavored to make the courts more user-friendly as well as more transparent to the public.  Recognizing that every day more than 42,000 people come to our courthouses (based on the FY2010 Annual Report on the Commonwealth of the Massachusetts Court System), and more and more self-represented litigants, we are attempting to demystify the legal process.   Help desks or information kiosks were initiated in various courts to assist the public as they enter court houses.  We also opened several courts for extended hours so that, in some cases, litigants could resolve their cases without having to miss a day of work.

Our Access to Justice Initiatives provide services and support to litigants without access to legal representation in civil cases, some of which concern the most basic necessities of life.  And through specialty courts we are able to deal with substance abuse and drug and alcohol addiction, mental health, and veterans’ issues.

Another bridge we began to build was with our law schools.  This year we held the first “Summit” with the deans of Massachusetts law schools.  Our roundtable discussion covered many issues involving legal education in Massachusetts and ways to assist graduates to be more prepared for the “real world” of lawyering upon graduation.

I hope to continue to play a part in the lives of students, especially those at risk, even after I retire.  This summer I again led the Judicial Youth Corps (JYC), the SJC’s program for high school students, as I have for the past twenty-four years.  With the wonderful support of the Massachusetts Bar Association, we expanded the JYC to both Worcester (in 2009) and Springfield (in 2014).  At this point we have more than 700 alums of the JYC.  Some are now lawyers, teachers, business professionals, and we even have one judge.

One aspect of the JYC that I am especially proud of is the role that court employees play each year.  Each of our students has a volunteer supervisor who works with the student the entire summer.  They do not get a single extra penny for doing this, and they do it for just one reason – to help a kid.  And many of the employees have volunteered each and every year for the past twenty-four years.  Paul Liacos, a former Chief Justice of the SJC, was the visionary who founded the program back in 1990.  I know he would be proud.

As I neared retirement in June of 2014, I was appointed Distinguished Professor of Criminology and Criminal Justice in the College of Social Sciences and Humanities at Northeastern University, where I have been an adjunct professor for the past thirty-six years.  I joined the faculty full-time at the end of August.  Among the courses I will be teaching is one that I am developing called, “The Third Branch of Government.”  It will examine the interplay of the judiciary with the legislative and executive branches, as well as with external entities like business and the media.

One part of the course will be to look at the “theory” of how government is supposed to work.  But another part will focus on the “reality” of government, and will look at how things actually work in the real world.  And in that part of the course I hope to take my students on the road to see how government actually functions, from meeting with key players in all three branches, to observing the various processes of the branches unfold.

I hope to show my students what my experiences as Chief Justice have helped me to understand, which is that even though the three branches of government are “separate, independent and co-equal,” they are also all interdependent and connected with each other.  For the third branch of government to perform its function properly, it must have the support and assistance of the other two branches of government.  And without the support of the other two branches, the third branch will almost certainly be unable to provide the services that the public needs and expects in a timely, efficient, and fair way.

And with that, I will close.  As I do, it bears repeating that my serving as Chief Justice these past four years has been the highest honor and privilege.  But I did not do it alone.  What made leading this Branch possible for me, from my very first day as Chief, was the tremendous support I received from my colleagues and staff.  I am grateful to everyone who has helped me along the way.  It has meant so much to me.  I extend my best wishes to all in future years.  All the best!!

 

Chief Justice Roderick L. Ireland serves as a Distinguished Professor of Criminology and Criminal Justice at Northeastern University. He served as Chief Justice of the Supreme Judicial Court of Massachusetts from 2010 to 2014.  He received his B.A., 1966, from Lincoln University, Pennsylvania; his J.D., 1969, from Columbia Law School; an L.L.M. degree, 1975, from Harvard Law School; and his Ph.D., 1998, Northeastern University.


Parole: Evidence of Rehabilitation and Means to Rehabilitate

Lyons_Crystal2by Crystal L. Lyons

Practice Tips

In Diatchenko v. District Attorney for the Suffolk District & Others, 466 Mass. 655 (2013), the Supreme Judicial Court invalidated the statutory provisions mandating life without the possibility of parole for juveniles convicted of first degree murder.  The Diatchenko Court adopted the U.S. Supreme Court’s decision in Miller v. Alabama, 132 S.Ct. 2455, 2460 (2012), which required consideration of a juvenile’s “lessened culpability” and “greater capacity for change.” As a result of Diatchenko, sixty-one Massachusetts inmates became eligible for parole and entitled to parole hearings where they will be afforded “a meaningful opportunity to obtain release,” Diatchenko, 466 Mass. at 674, before the completion of their criminal sentence.  This article provides guidance to practitioners appearing before the Parole Board for these and other life sentence hearings.

However laudable Diatchenko’s reform, it has collided with a countervailing pressure to tighten the standards for granting parole following the high-profile murder of a police officer committed by a parolee in 2010, and the subsequent public outcry which led to the resignation of five Parole Board members who had voted for his release. According to several studies, including by the Boston Bar Association and the Parole Board, once the data are corrected for high-profile offenses, recidivism rates are actually higher for persons who are released after serving a complete sentence than for those who are paroled.  Proponents of parole attribute this difference to the supervision, programs, and assistance parolees receive after release to facilitate reintegration into society.

Reconciliation of the two viewpoints lies in the application of one of the primary goals of sentencing: rehabilitation.  Commonwealth v. Goodwin, 414 Mass. 88 (1993).  Parole offers a “carrot and stick” approach to achieving rehabilitation.  The carrot, because parole can be granted at least in part based on an offender’s showing of rehabilitation, and the stick, because the Parole Board can place conditions on receiving parole, or rescind or revoke parole, based on failure to engage in programs, counseling, substance abuse treatment and a wide variety of other conditions.  M.G.L. c. 127, § 5; 120 C.M.R. § 300.07.  Importantly, offenders are not required to participate in treatment or educational opportunities offered during their incarceration, yet offenders often undertake such steps voluntarily with the goal of demonstrating rehabilitation and receiving parole.  Similarly, conditions of parole and the creation of a release plan cannot be mandated except for those offenders subject to parole.  Parole can thus be accurately described as both evidence of rehabilitation and a means of effecting the sentencing goal of rehabilitation.  By extension, the best advice to attorneys representing either parolees or the Commonwealth in life sentence parole hearings is to focus on presenting a cohesive narrative that focuses on rehabilitation.  The facts of the offense and an individual’s criminal history have already been established, but an attorney can situate those facts within a narrative arc of the offender’s development and future goals.

The Board must consider two factors in each parole decision: (1) the reasonable probability that the individual would not violate the law if released, and (2) the compatibility of release on parole with the welfare of society.  Parole may not be granted “merely as a reward for good institutional conduct.” M.G.L. c. 127, § 130; 120 C.M.R. § 300.04.  The Parole Board may consider a variety of evidence in its decision, including: prior criminal record; pending cases; the nature and circumstances of the offense; recommendations from parole staff; statements from victims or their family members; physical or psychological examinations; information the inmate provides, including letters of support and a parole release plan; information the District Attorney’s Office provides; and institutional behavior.  120 C.M.R. § 300.05

A typical hearing begins with an opening statement by the offender or his counsel, followed by questioning of the offender by each Board member.  The offender may present testimony from supporters, including family members, employers, or experts (such as mental health experts), each of whom may be questioned by the Board.  After the offender’s presentation, those opposing parole, including the victim or family members of the victim, may speak or present counter evidence.  The offender’s counsel may present closing arguments, and the Commonwealth may also present a closing argument or position statement.

The Board’s published Guidelines for Life Sentence Decisions should serve as the framework for constructing argument and applying the evidence listed above.  The Guidelines specify three questions to be addressed by the Board at each hearing:

1) Has the inmate’s period of incarceration been of sufficient length to adequately protect the public, punish him for his conduct, deter others, and allow for rehabilitation?

2) Is the inmate rehabilitated?

3) Are there reasons to conclude that the inmate will live outside prison as a sober, law-abiding, employed, productive person who is making positive contributions to his family and his community?

The key issues underlying each question are fully outlined in the Guidelines and fall into three main areas of inquiry: the offender’s past, his institutional behavior, and his action plan upon release.

Offender’s Past

In addition to understanding the facts and circumstances of the crime, the Board will ask if the individual has taken responsibility for and appreciates his role in the crime, including the impact it had on any victims.  Has the offender’s story has changed over time and is the offender only acknowledging his behavior for the purpose of gaining parole? In that regard, assess if post-trial litigation can fit into a narrative of eschewing responsibility, or instead protecting a valuable substantive or procedural right.  What is the criminal history beyond the offense of incarceration and does it reveal a pattern of violent behavior or crimes committed against particularly vulnerable victims (such as children or the elderly)?  Has the offender had past defaults, bail revocations, or other factors which may indicate difficulty complying with conditions of parole?

An offender’s personal circumstances are also important, but can be a double-edged sword: they can serve as mitigating or aggravating factors depending on how they have been addressed.  Does the offender recognize the role those circumstances may have played in the offense or how they may impact his life upon parole? Has he specifically tailored his rehabilitative efforts to areas of substance abuse, childhood trauma, or other relevant factors? Similarly, if the offender has struggled with mental health issues, have those issues led to previous commitments, and have they been adequately treated?

Institutional Behavior

The Board considers two main areas of institutional behavior: first, the offender’s disciplinary record; and, second, how he has used his time in educational or other institutional activities.  What is the total number of infractions received and what is the trend?  Did infractions involve violence or contraband?  Was the individual the instigator?  What was the reason for any transfers within the Department of Correction?  Did the offender use his time to enroll, regularly attend, and complete programs, or has he attended only sporadically or claimed he was unable to attend?  How has he shown personal reflection and dedication to self-improvement? Has he achieved educational or vocational goals?  Has he taken leadership positions or consistently worked during his incarceration?  Has he been committed to any religion, vocation, organization, or family during his incarceration that will continue following his release?  What efforts has he made to address the Board’s concerns since any previous hearing and denial?

Release Plan

Finally, the Board considers the offender’s plan for life after release: does the offender have an adequate support network, including a place to live and work, treatment for ongoing issues, and persons who are committed to his success?  Be ready to show that these issues have been well thought out and not hastily thrown together.  Has the defendant been pre-approved for housing or programs?  Does he have an employer willing to offer a job?  Are there family members or religious supporters aware of the transitional difficulties he will face and willing and able to shoulder the potential emotional and financial impact?  Any testimony should focus on these issues and evidence of rehabilitation.  Avoid discussion about personal hardship due to incarceration or any perceived harm to the offender because of the conviction.

There are steps counsel may take to try to assuage any Board concerns arising during the hearing.  With permission, supplement the record following the hearing.  This can be particularly useful to address questions regarding the parole release plan and provide conditional acceptance to programs, housing, or employment opportunities.  The Board may be inclined to grant parole with pre-conditions and transition periods rather than deny parole with recommended steps an inmate take before his next review hearing.  After listening carefully to the Board’s questions and testimony provided, use closing argument to address any trouble areas or discrepancies between what emerged at the hearing with the written materials provided to the Board.

Conclusion

Hearings mandated by Diatchenko began in May 2014 and have so far resulted in the parole of the first three juvenile offenders considered.  Notwithstanding these recent decisions, the seriousness of life sentence offenses and the Board’s stated goal of achieving fairness and consistency across similarly situated offenders suggests that parole will not be granted often on a first review, even where an offender has taken responsibility for his actions and demonstrated significant rehabilitation. The three juvenile offenders had served twenty, eighteen, and twenty-two years, respectively, where they are now eligible for parole after serving fifteen years.  The Board also required each of the paroled juvenile offenders to complete additional programs prior to release after one year in a lower security facility.

Overall, Parole Board statistics show that parole was granted to 21% of offenders serving life sentences (including for crimes other than first degree murder) who were over 18 years old on the date of offense, compared with 53% of those who were under 18 years old on the date of the offense.  This suggests that the Board is seriously weighing the role of youth in both the commission of the offense and rehabilitation, as required by the Supreme Judicial Court.

 

Crystal L. Lyons is an Assistant District Attorney in the Appeals & Training Bureau of the Middlesex District Attorney’s Office, and a member of the BBJ Board of Editors. She clerked for the Ninth Circuit Court of Appeals and graduated Order of the Coif from UCLA School of Law. The views expressed in this article are those of the author solely and do not reflect in any way the views or policies of the Middlesex District Attorney’s Office. The author is indebted to Stephen Hoctor for creating an earlier version of an article on this subject. 


SJC Holds That “Modern Rule” on Easements Applies to Registered Land

Pinto_Donby Donald R. Pinto, Jr.

Case Focus

In its recent decision in Martin v. Simmons Properties, LLC, 467 Mass. 1 (2014), the Supreme Judicial Court (“SJC”) held that the rule it adopted in its landmark decision in M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004) – which allows the owner of land burdened by an easement to relocate the easement or change its dimensions – applies to easements appurtenant to registered land.  Rejecting a contrary holding of the Appeals Court, the SJC affirmed an underlying Land Court ruling that registered land is not exempt from the “modern rule” of M.P.M. BuildersMartin not only clarifies that M.P.M. Builders applies to registered land, it confirms that, in the wake of M.P.M. Builders, a long line of cases concerning the rights of parties holding easements that are clearly described or are shown on a plan is no longer good law.

Plaintiff Clifford J. Martin (“Martin”) in 1969 purchased about one-third of an acre of registered land in a commercial-industrial district near the Medford-Somerville line.  Martin’s parcel – Lot 3A – has the benefit of several easements, including an easement of passage over Way A, which crosses a number of other lots in the area.  In 1993, defendant Simmons Properties, LLC (“Simmons”) purchased three of the lots that Way A crosses.  Simmons made various improvements on its parcels, and some of those improvements protrude into Way A.

In 2007, Martin sued Simmons in Land Court, alleging 15 acts of encroachment on Way A.  Some of these encroachments were initiated by Simmons; others predated its ownership of its lots.  While conceding that, to date, none of these encroachments prevented him from using Way A to access Lot 3A, Martin claimed he was entitled to have the encroachments removed so he could use the full width of Way A.  After trial, the Land Court ruled that Martin was not entitled to the removal of any encroachments from Way A.

The Land Court reasoned that, though the encroachments in Way A are within an easement referenced in Martin’s certificate of title, this confers on Martin no “absolute right to removal . . . .”  While the certificate provides certainty as to Martin’s title – including the existence of his easement over Way A – the court saw no reason to forsake the usual rules of property law applicable to unregistered land, under which the owner of the burdened land (Simmons) may use its land for all purposes not inconsistent with the rights of the easement holder (Martin).  The Land Court noted that, if Martin’s use of Lot 3A were to change, as a result of which the encroachments in question did materially interfere with his rights in Way A, Martin might then be entitled to “judicial adjustment” of the encroachments.

Martin appealed, and on the question of his right to removal of the encroachments, the Appeals Court reversed.  After noting the distinction between easements intended to remain fully open and those intended to provide only a “convenient passage,” the court stated, “we are aware of no case that holds that only a convenient passage is intended when a right of way is reserved over a way defined and located by reference to a Land Court plan.”  The Appeals Court found support for its view in a line of cases holding that, where the description of a right of way is definite and free from ambiguity – particularly where it is shown on a plan – the easement holder is entitled to use the entire width of the described way.  Having placed Martin’s easement over Way A into this category, the court concluded that “[a] finding that the obstructions do not interfere with present or future uses is immaterial . . . .”  With regard to encroachments that pre-dated Simmons’ ownership of its lots, the Appeals Court remanded the case to the Land Court for further findings to determine which party is responsible for their removal.

The SJC granted Simmons’ application for further appellate review and affirmed the Land Court’s ruling that the encroachments in Way A need not be removed.  The SJC held that the case is governed by its 2004 decision in M.P.M. Builders, supra, in which the court announced the adoption of the “modern rule” of § 4.8(3) of the Restatement (Third) of Property (Servitudes) (2000).  Section 4.8(3) provides that, unless expressly prohibited by the terms of an easement, the owner of the burdened property can make reasonable changes in the location and dimensions of an easement to permit “normal use or development” of the property, but only if those changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the easement holder in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.  The SJC noted that, while M.P.M. Builders concerned the relocation of an easement, the same rule applies in a case like Martin, where the easement has not been relocated but rather its width has been narrowed in some places.

Regarding the fact that Martin’s easement is appurtenant to his registered land and is shown on a Land Court plan, the SJC rejected the Appeals Court’s view that this rendered the easement “immutable.”  The SJC found nothing in its precedents or in the land registration act to suggest that different rules apply to easements appurtenant to registered land.  The court noted that while the registration system provides certainty with respect to title – including by assuring owners of registered land that their easements continue to exist – it does not purport to grant additional property rights.  Thus, the SJC concluded, “we adhere to our well-established precedent and consider the easement here under existing jurisprudence as to recorded land.”

Martin is an important decision for two reasons.  First, it confirms that easements appurtenant to registered land are not accorded special status, and are subject to changes in their location and dimensions under the rule of M.P.M. Builders.  Second, more broadly, it makes clear that the long line of cases on which the Appeals Court relied – standing for the proposition that where an easement is described with precision or is shown on a plan, the easement holder has the right to use the full width of the easement – is no longer good law.  Under the “modern rule” of M.P.M. Builders, all easements are subject to changes in their location and dimensions unless by their express terms they prohibit such changes.  Thus Martin highlights an important drafting note for grantees of easements:  if you like the location and width of your easement, and you want to keep it, make sure it includes language prohibiting the kinds of changes otherwise authorized by M.P.M. Builders.

Donald R. Pinto, Jr. is a Director of Rackemann, Sawyer & Brewster, P.C. where he handles all types of real estate litigation.  He is the founder and editor of masslandusemonitor.com, a widely-read real estate and land use law blog. 


Predicting the Complex Future of Retroactivity in Massachusetts: Commonwealth v. Sylvain

by Professor Daniel Kanstroom

Case Focus

Kanstroom_Dan“[We] cannot escape the demands of judging or of making the difficult appraisals inherent in determining whether constitutional rights have been violated.”

Goldberg, J., Haynes v. Washington, 373 U.S. 503, 515 (1963)

In Commonwealth v. Sylvain,466 Mass. 422 (2013), the SJC held that the requirements placed on criminal defense lawyers to properly advise defendants about certain immigration consequences enunciated in Padilla v. Kentucky, 559 U.S. 356 (2010) are retroactive to 1997.  The SJC, relying both on the Sixth Amendment and on art. 12 of the Massachusetts Declaration of Rights, diverged from the U.S. Supreme Court on the retroactivity question.  This very important—but rather esoteric—immigration law case may have profound implications regarding the retroactivity of recent holdings in such areas as public trial rights during jury selection and juvenile sentencing.

The SJC achieved a just outcome while reminding the legal community why retroactivity is an extraordinarily difficult jurisprudential concept and why immigration law has long been known as a subject that could “cross the eyes of a Talmudic Scholar.” The daunting complexities presented by the case derived in part from certain anachronistic late nineteenth century legal doctrines establishing “plenary power” over noncitizens seeking to enter the United States as well as those facing deportation.  The Court has held that certain noncitizens seeking to enter the United States have no enforceable constitutional rights and that deportation exercised under that power was not criminal punishment.  Therefore, the specific constitutional norms attendant to the criminal justice system are largely inapplicable to deportees.  See Fong Yue Ting v. United States, 149 U.S. 698 (1893).

For more than a century, the constitutional implications of these doctrines and their progeny frequently (but not always) defeated claims of ineffective assistance of counsel by deportees who were badly advised (or not advised at all) by their criminal lawyers.  Noncitizens have the right to appointed counsel in the criminal justice system, but they do not have such a right in deportation proceedings.  Deportation has often been deemed a civil “collateral” consequence of criminal conviction.  Among other implications of this categorization, criminal defense lawyers have sometimes been found to have no professional duty to advise defendants about such consequences.

In 2010, however, the Supreme Court decided Padilla v. Kentucky, 559 U.S. 356 (2010), a case in which the question of ineffective assistance was squarely presented. Mr. Padilla, a long-term lawful permanent resident of the United States, had apparently been advised to plead guilty to a drug-related charge in criminal court, which—unbeknownst to him—virtually guaranteed his deportation and lifetime banishment from the United States and his family.  The Court upheld his claim that his criminal defense counsel was ineffective due to this incorrect advice concerning the risk of deportation. This was in many respects a path-breaking, virtually unprecedented constitutional decision, with powerful Fifth and Sixth Amendment implications. See generally, Daniel Kanstroom, The Right To Deportation Counsel in Padilla v. Kentucky: The Challenging Construction of the Fifth-And-A-Half Amendment, 58 UCLA L. REV. 1461 (2011); see also, Daniel Kanstroom Padilla v. Kentucky and the Evolving Right to Deportation Counsel: Watershed or Work-in-Progress? 45 NEW ENGLAND L. REV. 305 (2011).

The Court, most significantly, recognized that deportation as a consequence of a criminal conviction now has such a close connection to the criminal process that it is uniquely difficult to classify it as either a “direct or a collateral consequence.”  Padilla at  364.  The two systems, in short, have become inextricably linked. Further, the Court recognized that “the landscape of federal immigration law has changed dramatically.” In the past there were only a “narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation.” But now, the regime contains a much-expanded class of deportable offenses and it has limited the authority of judges “to alleviate the harsh consequences of deportation.” Id. at 357.  As a result of these changes, the “drastic measure” of deportation or removal, . . . is now virtually inevitable for a vast number of noncitizens convicted of crimes.  Deportation has become “an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” Id. at  362 (emphasis added).  From this logic, one can easily see why substantial due process protections, and also some of the more specific protections normally tied to the criminal justice system, are warranted. See generally Daniel Kanstroom, Deportation, Social Control, and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, 113 HARVARD LAW REVIEW 1890-1935 (June, 2000).

The question quickly arose whether the Padilla model would be retroactive.  Unfortunately, Padilla itself did not address this question.  In Commonwealth v. Clarke, 460 Mass. 30 (2011), the SJC held that Padilla was retroactive, at least as to convictions that became final after April 1, 1997 (the effective date of relevant changes to deportation law).  The SJC followed a long-standing framework derived from Teague v. Lane, 489 U.S. 288 (1989). See also, Commonwealth v. Bray, 407 Mass. 296, 300-301 (1990) (adopting Teague model).  The essential question from Teague and progeny was whether the Supreme Court in Padilla had announced a “new” rule.  A “new” rule, very simply put, “breaks new ground or imposes a new obligation” on the government.  If so, the Padilla norms would not be retroactive. In Clarke, the SJC concluded that Padilla was not a new rule because it was merely an application of well-recognized Sixth Amendment ineffective assistance of counsel standards. See Strickland v. Washington, 466 U.S. 668 (1984); Clarke at 34-46.

So far, so good; and so far, at least moderately clear.  However, things soon got murkier.  In Chaidez v. U.S., 133 S. Ct. 1103 (2013), the Supreme Court held that Padilla had in fact announced a “new” rule and therefore its holding should not be applied retroactively by federal courts.  Chaidez, however, did not necessarily bind state courts.  Indeed, the Supreme Court had recognized the propriety of such divergence in Danforth v. Minnesota, 552 U.S. 264 (2008) in which the Court held that Teague does not constrain the authority of state courts to give broader effect to “new” rules of criminal procedure.

In Sylvain, the SJC continued to view retroactivity differently from the Supreme Court.  The SJC concluded that Padilla did not announce a “new” rule for the “simple reason that it applied a general standard—designed to change according to the evolution of existing professional norms—to a specific factual situation.”  Sylvain at 435 (citing Clarke, supra at 36, 38-39, 43; Chaidez, supra at 1114-1116 (Sotomayor, J., dissenting).  Importantly, the SJC based its ruling both on the Sixth Amendment and on art. 12 of the Massachusetts Declaration of Rights.  As one excellent Practice Advisory notes, art. 12 may prove to be a broader source of rights for noncitizens than the Sixth Amendment.  See CPCS, Immigration Impact Unit, Practice Advisory on the Retroactivity of Padilla in Massachusetts: Commonwealth v. Sylvain, 466 Mass. 422 (2013), October 2013.

The SJC also correctly noted that professional standards in Massachusetts have long required criminal defense lawyers to advise noncitizen clients about immigration consequences.  Practitioners thus now face a certain dissonance in that criminal defendants prosecuted in federal courts who face or have faced deportation may only cite Padilla prospectively, while state court defendants in Massachusetts may use the Padilla ruling to seek to vacate convictions dating back to 1997.  The practical difficulties involved in bringing such claims on behalf of deportees are still significant, however. See, e.g., Perez Santana v. Holder, No. 12-2270 (1st Cir. Sept. 27, 2013) (invalidating regulation barring such claims), and Bolieiro v. Holder, No. 12-1807 (1st Cir. Sept. 27, 2013) (same).

Sylvain may also portend greater assertiveness by the SJC in certain other arenas where retroactive application of constitutional holdings is at issue.  The SJC has now made clear that it considers a “new” rule to be such only if the result is contrary to precedent.  Sylvain, at 434.  This is rather narrower than the approach taken by the Supreme Court, which has used the formulation of that which was not “apparent to all reasonable jurists.”  The SJC formulation could thus expand state court remedies for other violations of constitutional rights.  Indeed, the Court highlighted that retroactivity in Sylvain was required by “tenets of fundamental fairness.”  Sylvain at 437, citing Commonwealth v. Amirault, 424 Mass. 618, 639 (1997).  It therefore seems quite possible that Sylvain could influence such pending questions as the retroactivity of rulings about mandatory life without parole sentences for juveniles—See Diatchenko v. D.A. for the Suffolk District, SJC-11453—and public trial rights during jury selection. See Commonwealth v. Alebord, SJC-11354.  Retroactivity analysis will thus have to consider, in addition to precedent, such factors as the evolution of practice, reliance, and deeper normative questions of justice and fairness.

Daniel Kanstroom is a Professor of Law and Director of the International Human Rights Program at Boston College Law School. He is also the Founder of the Post-Deportation Human Rights Project.


Workers’ Rights Keep Pace With Corporate Practices: Recent SJC Decisions Expand Reach of Wage & Hour Laws

by Jocelyn B. Jones 

Case Focus

SONY DSCOnly 20 years ago, criminal prosecution was the sole means of enforcing the Massachusetts wage and hour laws. But the enforcement landscape has changed dramatically since 1993, when enforcement authority was transferred to the Attorney General’s Office from the former Department of Labor & Industries, and employees were authorized to initiate private lawsuits, in which those who prevailed were entitled to treble damages and attorneys’ fees, among other remedial measures. A further transformation took place in 1998, when the Attorney General was granted civil citation authority and monetary penalties for violations were enhanced, and with them, greater deterrence was set into play. The Legislature’s addition of these enforcement mechanisms in the 1990s increased  the development of wage and hour related case law, particularly at the appellate level. This rather dramatic expansion of case law in the wage and hour arena has accompanied the crystallization of the viewpoint expressed by the Massachusetts Supreme Judicial Court (“SJC”) that these legal protections are to be interpreted broadly, to ensure that the laws accomplish their underlying goal of guaranteeing that all workers receive their earned wages.  Consistent with this view, two recent SJC decisions underscore the expansive reach of the wage and hour laws’ protections.

LLC Managers & Wage Act Liability

In Cook v. Patient Edu, LLC, et al., the SJC addressed an issue of first impression about whether managers of a Limited Liability Company (“LLC”) may be held personally liable for violations of the Massachusetts Wage Act, M.G.L. c. 149, §148. A former employee brought suit in Superior Court against the LLC, as well as two of its managers, for unpaid wages. Relying on the statutory language and the express legislative purpose of protecting employees from long-term wage detention, the SJC concluded that “[b]ecause a manager or other officer or agent of an LLC…” may be a “person having employees in his service,” if he “controls, directs, and participates to a substantial degree in formulating and determining policy” of the business entity, he may thus be civilly or criminally liable for violations of the Wage Act.

Originally enacted in 1879, the Wage Act has been amended over the years to apply to both private and public sector employers. Among other provisions, the law requires that “[e]very person having employees in his service” must pay employees within the time limits specified within the statute. In addition, the statute expressly imposes liability on corporate officers and agents, as well as certain public officers. Cook’s managers pointed to these references and argued that because managers of LLCs are not specifically identified as employers under the Wage Act, in contrast to corporate or public officers, they cannot be held individually liable. But the SJC disagreed. The Court found that personal responsibility for Wage Act violations is not limited only to these particular categories of individuals. The SJC reasoned that the Legislature has merely provided examples of situations in which an individual may be deemed to be an employer. With that, the SJC remanded the case back to the trial court for further proceedings to determine what role the managers played and whether they were sufficiently involved with the LLC’s financial decisions to render either of them liable as a “person having employees in his service.”

This and other recent Massachusetts appellate decisions considering actions that may implicate workers’ rights under the wage and hour laws suggest that employers should consider that that courts are often likely to interpret statutory provisions in the light most favorable to workers. This reality, coupled with the prospect of individual liability, provides abundant motivation for business leaders to ensure that their employees are paid in full and on time.

Misclassification of Out-of-State Employees

Much has been made of the Massachusetts’ Employee Misclassification Law (or so-called Independent Contractor law), since its significant amendment in 2004. Today, the Massachusetts statute is arguably the most protective employment misclassification law in the country. The statute ensures that individuals who are properly classified as employees are afforded the protections intended for employees, including but not limited to timely payment of wages, minimum wage, overtime, as well as workers’ compensation, unemployment, the right to organize and nondiscrimination protections, i.e., statutory protections not available to independent contractors. Massachusetts has a history of leading the way in enacting laws that favor worker protections, and increasingly other states are following suit. Indeed, many state legislatures have either recently adopted misclassification laws very similar to ours or are currently considering doing so. A recent SJC decision highlights why all employers should be aware of this trend.

In Taylor v. Eastern Connection Operating, Inc., the SJC ruled that the Massachusetts Independent Contractor law applied to couriers who both lived and worked in New York while employed by a Massachusetts-based delivery company, Eastern Connection Operating.  The SJC found that these individuals, who neither live nor work in Massachusetts, are nevertheless entitled to the protections of the Massachusetts Independent Contractor law. How, you may ask, can that be? The decision rests on the “choice-of-law doctrine,” which considers, among other things, the parties’ expressed intent as to which state’s law will govern legal disputes between them and which state has the most stake in the outcome of an lawsuit.

In considering these factors, the Court made two key findings in the case:   1) the employment contracts between the company and the couriers demonstrated that the parties intended to apply Massachusetts law, and 2) because the laws of New York and Massachusetts concerning employment misclassification are quite similar, applying Massachusetts law would not undermine New York public policy. As the Court wrote:

“Under both Massachusetts and New York law, a purported independent contractor who does not enjoy sufficient independence from the hiring party is deemed an employee. States seek to protect workers by classifying them as employees, and thereby grant them the benefits and rights of employment, where the circumstances indicate that they are, in fact, employees. New York simply uses a different mechanism to effectuate this aim than does Massachusetts” (emphasis supplied.)

Importantly, the Court also noted that “where no explicit limitation is placed on a statute’s geographic reach, there is no presumption against its extraterritorial application in appropriate circumstances.” And here, the SJC found that the Massachusetts Independent Contractor law contained no such limitation. For these reasons, the court held that the Massachusetts law applied to the plaintiffs’ claims and that because the plaintiffs could ultimately be found to be employees under Massachusetts law, the Superior Court erred by dismissing their wage claims on the basis that they were independent contractors.

As other states’ misclassification laws continue to evolve to more closely resemble those of Massachusetts, the Taylor case suggests that employers should take care to ensure that they understand the effect of contractual choice of law provisions and that their in-state and out-of-state workers are properly classified. Massachusetts’ more formidable wage protections may well be within their reach.  And other states’ laws are helping them on their way.

The Cook and Taylor decision are but two of many important workers’ rights victories that have been handed down by the SJC over the past decade.  As case law in the wage and hour arena continues to expand, we can expect that the SJC will continue to interpret the law with an eye towards ensuring the goal of protecting workers’ rights so clearly central to the state’s wage and hour laws.

Jocelyn B. Jones is Deputy Chief in the Massachusetts Attorney General’s Office (AGO), Fair Labor Division, a position she has held since 2007. She has served as an Assistant Attorney General in the Division since 2000, and as Special Counsel for Fair Labor Policy since early 2013.

*  The Attorney General’s Fair Labor Division filed an amicus curiae brief on the behalf of the Plaintiff in the Cook matter.  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; this article is not intended to be an official Opinion of the Attorney General rendered pursuant to statutory authority.   


SJC Clarifies Legal Standard Used in Child Support Modification Cases

by Ruthanne Withers

Case Focus

Withers_RuthIn its recent decision, Morales v. Morales, 464 Mass. 507 (2013), the Massachusetts Supreme Judicial Court (“SJC”) clarified the standard used in child support modification cases.  Previously, a litigant had the burden of proving that a “material and substantial change in circumstances” had occurred since entry of the prior child support order.  Pursuant to the SJC’s decision in Morales, which reaffirmed the relevant statutory standard, a litigant must now show that an “inconsistency” exists between the prior order and the order that would result from the application of the Child Support Guidelines (“Guidelines”).

Due to changes in federal law regarding the collection and enforcement of child support orders, Massachusetts child support statutes were amended in 1994.  One of the most notable amendments was the change in the standard used to modify child support orders.  Before 1994, a litigant had the burden of proving that a “material and substantial change in circumstances” had occurred since entry of the last child support judgment.  See, e.g.,  G.L. c. 208, §28, as amended by St. 1993, c. 460, §§60 to 62.  Under current law, a child support order “shall be modified if there is an inconsistency between the current order and the order that would result from application of the child support guidelines.”  See, e.g., G.L. c. 208, §28.

Mr. and Mrs. Morales were divorced by order of the Probate and Family Court in May, 2008.  The Judgment of Divorce Nisi (“Judgment”) ordered Mr. Morales to pay child support of $172 weekly for the parties’ son.  In May 2009, Ms. Morales filed a Complaint for Modification to modify the child support order due to her ex-husband’s increase in pay and promotion at work.  After a two-day trial, the Probate and Family Court dismissed Ms. Morales’ Complaint for Modification on the grounds that she had not proven a “material and substantial change in circumstances” since entry of the May 2008 Judgment.

After the Appeals Court affirmed the lower court’s decision, Ms. Morales filed an application for Further Appellate Review, which was granted by the SJC.  In March 2013, the SJC issued its decision and clarified the standard for modification of child support orders.  Morales v. Morales, supra. The SJC concluded that the “trial judge, in ruling on the mother’s modification complaint, erred by applying a standard requiring a material and substantial change in circumstances (material and substantial change standard) rather that the standard set forth in G.L. c. 208, §28…”.  Morales at 508.

The SJC’s decision is significant because there has long been a conflict between the modification standard cited in court decisions and the statutory language defining the standard for modification of child support orders.  The inconsistency standard will simplify the judicial process, ease congestion in the courts, and reduce the amount of litigation involved in child support modification cases.  Family law practitioners handling child support modification cases should not notice much change in terms of their approach to the subject as the Guidelines are  still used for litigants whose combined incomes fall below $250,000.  The most significant change will be that a client will no longer have to prove a “material change” has occurred since the last order.  If the previous child support order is different from what it should be under the Guidelines, then the order shall be modified.  However, it should be noted that if the original order deviated from the Guidelines, the new standard may not apply, and a client will have the burden of proving that a material change has occurred in order to modify the existing order.

Lower and moderate income litigants who are seeking to either increase or decrease a child support order, and who often do not have the financial resources to hire an attorney or engage in protracted litigation, will benefit the most from the clarified standard.  Showing an objective “inconsistency” between a prior order and a proposed new order, instead of proving a subjective “material and substantial change in circumstances,” affords greater access to the courthouse because it is a simplified standard that the general public can easily grasp.  In these tough economic times, when nearly 70% of litigants in some Probate and Family Courts are pro se, it is more important than ever to provide greater ease and access to justice for all Massachusetts litigants, especially those trying to navigate an often complex judicial system by themselves.

Ruthanne Withers is an Associate with the Attleboro law firm of Coogan, Smith, McGahan, Lorincz, Jacobi & Shanley, LLP.  From 2005 through 2013, Attorney Withers was employed with the Family Law Unit of Community Legal Aid in Worcester.  She represented the wife in the Morales v. Morales case.