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.

 

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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.