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.


Not Just the Facts: Commonwealth v. Walczak Tells Prosecutors When to Instruct Grand Juries on the Law in Juvenile Murder Cases

by Alex Philipson

Case Focus

Philipson_AlexIn the mid-1920’s, in one of America’s most sensational cases of juvenile homicide, teenagers Nathan Leopold and Richard Loeb bludgeoned a neighbor to death in Chicago. At about the same time, a thousand miles away in Boston, the Supreme Judicial Court declared that a prosecutor seeking an indictment should, in appropriate instances, do more than present evidence to the grand jury; he should also give advice on the law. See Attorney Gen. v. Pelletier, 240 Mass. 264, 307 (1922). Nearly a century later, the concerns of these seemingly unrelated cases—juvenile murder and grand jury instructions—came together in ways never before seen in Massachusetts.

In Commonwealth v. Walczak, 463 Mass. 808 (2012), in a plurality opinion, the SJC held that a prosecutor must instruct the grand jury on the law in any case where he or she seeks to indict a juvenile for murder, and where there is substantial evidence of mitigating circumstances or defenses other than lack of criminal responsibility. Specifically, the prosecutor has a duty to inform the grand jury of the elements of murder and the significance of mitigating circumstances or defenses for reducing or eliminating the juvenile’s criminal liability—using the model homicide instructions, modified for grand jury proceedings. In no other case had the SJC ever held that a prosecutor was required to instruct the grand jury on the law absent a request from the grand jury. See Commonwealth v. Noble, 429 Mass. 44, 48 (1999).

Unlike Leopold and Loeb, who set out to commit a thrill killing, Walczak had no intention of killing anyone when, embroiled in a fight with two other teenagers, he allegedly stabbed one of them to death. One night in August, 2010, Walczak, then sixteen years old, agreed to meet the victim and another youth on a street corner to sell them marijuana. The purported buyers had actually planned to rob Walczak of his drugs. When the three met, the victim and his friend told Walczak they were going to take his marijuana, and one poked him in the head. Punches were thrown and Walczak stabbed the victim several times in the neck and torso with a knife, killing him.

The Commonwealth sought and obtained an indictment for murder in the second degree. Walczak moved successfully to dismiss the indictment on grounds of insufficient evidence. See Commonwealth v. McCarthy, 385 Mass. 160 (1982). The judge ruled that the Commonwealth had failed to disprove that Walczak acted on reasonable provocation or sudden combat—mitigating circumstances that negate malice and reduce a homicide from murder to voluntary manslaughter—and that, as a matter of law, the evidence supported at most an indictment for manslaughter.

On appeal by the Commonwealth, the SJC unanimously held that the judge erred: the evidence was sufficient to show probable cause for murder in the second degree; the Commonwealth bore no burden to disprove mitigation in the circumstances; and the grand jury was free to believe or disbelieve the evidence of mitigation. Nothing about those conclusions was particularly surprising. The excitement began when the justices considered an alternative ground for affirming the dismissal of the indictment: the Commonwealth’s failure to instruct the grand jury on the legal significance of the evidence of mitigation—i.e., that if someone kills another based on reasonable provocation or during sudden combat the offense would be manslaughter rather than murder. On the need for these instructions the justices differed markedly, but a plurality concluded that the Commonwealth should have given the instructions.

In dissent, Justice Spina, joined by Chief Justice Ireland and Justice Cordy, argued that, regardless whether mitigating circumstances surround a homicide, the Commonwealth has no obligation to instruct on mitigation absent a request from the grand jury. But according to the plurality opinion, at least where there is “substantial” evidence of mitigation—evidence “so strong” that “concealing it would impair the integrity of the grand jury” because the evidence concealed probably would have influenced the grand jury’s decision about what charge, if any, to indict—the legal significance of that mitigating evidence must be explained. Presumably a reviewing court would examine the facts de novo to decide whether the evidence of mitigation was substantial enough to require the instructions, but Walczak is silent on this point.

Justice Gants, in his concurrence, joined by Justices Botsford and Duffly, thought the instructions should be given in all murder cases, juvenile and adult. For him, what made the instructions necessary were “due process” interests not limited to juveniles.

By contrast, Justice Lenk, who wrote her own concurrence, did not speak in terms of due process. Rather, she thought that what necessitated the instructions were “prudential” concerns arising from the special status of adolescents. For example, unlike an adult, a juvenile indicted for manslaughter rather than murder faces trial in Juvenile Court, which affords special protections for adolescents. That difference, and the generally reduced culpability of minors as compared to adults, were the reasons Justice Lenk thought the instructions were required in juvenile murder cases. But the instructions that Justice Lenk thought essential were those concerning such traditional mitigating circumstances as reasonable provocation and sudden combat; she did not say that a grand jury should also be instructed that a juvenile’s youth itself constitutes a mitigating circumstance. (She did think that, in addition to instructions on mitigating circumstances, the grand jury should be told that a juvenile indicted for murder would be tried in Superior Court, but she was alone in that view.) For purposes of resolving Walczak’s case, Justice Lenk, unlike Justice Gants, thought it unnecessary to go so far as to require mitigation instructions (on reasonable provocation and sudden combat) not only for juveniles but for adults too. As the narrower view—requiring the instructions only in juvenile cases—hers prevailed in the plurality opinion.

But this reader, at least, sees no reason why the instructions should not be given in both juvenile and adult cases, as Justice Gants suggested. Although Justice Lenk wanted to ensure that a grand jury would take into account a juvenile’s youth, mitigation and self-defense are not concepts unique to adolescents. Adults can act out of reasonable provocation, sudden combat, or self-defense just as much as adolescents can. Thus, regardless whether the subject of a murder charge is a juvenile or an adult, it would seem fair in either case for the grand jury to be instructed on mitigating circumstances and self-defense, where the evidence warrants it. But the plurality concluded that the instructions are needed only in juvenile cases.

Besides instructions on mitigation and self-defense, Justice Gants suggested that the grand jury “may even be instructed that the prosecution is entitled to an indictment of the crime charged if it is supported by probable cause based on the credible evidence.” Walczak, 463 Mass. at 841. In this way, he agreed with Justice Spina that the grand jury is not permitted simply to choose between murder and manslaughter if credible evidence of the greater offense has been presented. But, as Justice Gants explained, even if the evidence of malice is legally sufficient, the grand jury is still free to decide that the evidence of mitigation is more reliable and return an indictment for the lesser offense.

Questioning the wisdom of the plurality’s view, Justice Spina pointed out that the decision did not address how one may pursue judicial review of a grand jury’s “gatekeeper” decision (i.e., whether the juvenile will be tried in Superior or Juvenile Court) or the applicable standard of review. More fundamentally, Justice Spina saw the plurality’s position as an “improper judicial exercise of the legislative function.” He believed that where the Legislature, in the 1996 Youthful Offender Act, removed power from Juvenile Court judges to determine in which court a juvenile would be tried, it was not up to the SJC to give similar power to the grand jury. Any legislative response to Walczak remains to be seen.

A postscript to this story is worth telling. After the SJC affirmed the dismissal of Walczak’s murder indictment, the Commonwealth returned to the grand jury to present the case again. This time, with the benefit of instructions on the legal significance of the mitigating circumstances, the grand jury indicted Walczak for voluntary manslaughter. As a result, Walczak will be treated as the juvenile he was in August, 2010, when that botched robbery turned tragically into a fatal fight.

Alex G. Philipson is founder of the appellate boutique Philipson Legal, providing appellate representation and consulting services in civil and criminal matters. He was Senior Staff Counsel to the Supreme Judicial Court from 2003 to 2011.