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Court corrects MCAD

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April 18, 2017:- If an employer believes that an employee’s disability poses a safety threat, may it re-assign or terminate that employee?

Until today, the answer to that question was this: only if the employer can prove an affirmative defense by demonstrating a “reasonable probability of substantial harm.” That is the standard set by the Massachusetts Commission Against Discrimination (MCAD) in its guidelines. Today the Supreme Judicial Court (SJC) decided that the MCAD guidelines are wrong. For the text of the decision in Gannon v. City of Boston click here. It involves a concussed MMA fighter/police officer, by the way.

After explaining why the MCAD is wrong to place the burden of proof on the employer (e.g. lack of statutory authority), the SJC stated that what the employer bears is the burden of production. So in a case where the employer’s decision is based on the employee’s disability, in order to avoid liability for discrimination the employer must show “specific evidence that the employee would pose an unacceptably significant risk of serious injury to the employee or others.” Then, when the employer has met this burden of production, the employee must prove that s/he is “capable of performing the essential functions of the job without posing an unacceptably significant risk of serious injury to the employee or others.”

The distinction between the burden of proof and the burden of production is important. The burden of proof must remain with the plaintiff employee, said the SJC. Contrary to the MCAD’s guidelines, employers do not have to raise the affirmative defense and then prove by the preponderance of the evidence the existence of “reasonable probability of substantial harm.” Rather, after the employer has shown an “unacceptably significant risk of injury” the onus is on the employee to prove that she or he can, in fact, do the job without posing such a risk.

In a nutshell: This decision delivers a subtle but important victory for employers.

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Peter Vickery, Esq.

Tenant’s right to jury trial

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March 31, 2017:- Today the Appeals Court issued its decision in CMJ Management Co. v. Wilkerson,  a landlord-tenant case from the Boston Housing Court.  After the tenant failed to comply with the pre-trial orders, the judge struck the demand for trial by jury.

The Appeals Court held that the judge should not have struck the demand without first considering “lesser sanctions.” But it also made clear that Housing Court judges do have the discretion to impose the sanction of striking a jury-trial demand, so long as the judge takes into account the tenant’s culpability, any prejudice to the landlord, and the deterrent effect. The right to jury trial is fundamental but it is not absolute.

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Peter Vickery, Esq.

New MCAD bill filed

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February 23, 2017:- If you are charged with discrimination and you file a motion to dismiss for lack of jurisdiction, must the Massachusetts Commission Against Discrimination (MCAD) rule on your motion before launching an investigation? No, not at present. But that will change if H. 775 becomes law.

Titled “An Act Streamlining the Investigation Process of Discrimination Complaints,” the bill would require the MCAD to adjudicate a respondent’s motion first and start its investigation only if it determines that jurisdiction is proper.

Why does this matter? The main reason is the constitutional principle of the separation of powers: an executive agency should not hale people in if the Legislature has said it should not. For example, when it enacted Chapter 151B the Legislature said that the MCAD would have no jurisdiction to investigate businesses with fewer than six employees (the small-business exemption). So when the MCAD does investigate businesses with fewer than six employees it is, in effect, exercising the legislative function by re-writing the statute.

But there are pocket-book reasons too. Defending against a charge of discrimination can prove costly, which rather stacks the deck in favor of the complainant who is represented either by a lawyer working on a contingent-fee basis or by the MCAD itself. Add to that the MCAD’s institutional bias toward early resolution (which is not necessarily a bad thing) and you have an incentive for respondents to fold faster than Superman on laundry day, as Jerry Seinfeld put it.

As things stand a respondent will be tempted to settle at a commission-mandated conciliation conference early on, even if the case should never have been on the agency’s docket in the first place. Real money is at stake here, and business owners should not have to fork over for claims that should be thrown out on jurisdictional grounds. That is not an efficient use of resources. Screening out cases like these would allow businesses to devote those resources to other purposes, e.g. improving products and services to benefit their customers and creating new jobs.

The bill has been assigned to the Joint Committee on the Judiciary. Stay tuned for updates, and click here for a previous post on this subject.

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Peter Vickery, Esq.

Free speech victory for enviro bloggers

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February 14, 2017:-Today the highest court in Massachusetts marked St. Valentine’s Day  by demonstrating its love for free speech.

The question was this: If bloggers accuse a scientific consulting company of fraud, questionable ethics, and intentionally manipulating findings, may the company sue the bloggers for defamation? The answer: No, not in Massachusetts, at least not if the company is providing expert testimony in high-profile litigation.

In a case connected to the Deepwater Horizon explosion and oil spill, the Supreme Judicial Court (SJC) considered the defamation complaint one of BP’s experts, Chemrisk, had brought against two environmental activists. The activists wrote that Chemrisk had engaged in fraud and “intentionally manipulated findings.” Relying on the anti-SLAPP statute, they had asked a lower court to dismiss Chemrisk’s lawsuit. The  lower court denied the motion, but the SJC essentially overturned that denial and, to boot, awarded the activists their costs and legal fees. To read the SJC decision, click here.

The anti-SLAPP statute protects defendants not only in directly petitioning governmental bodies, but also in making “any statement reasonably likely to enlist public participation” in that petitioning effort effort. According to the SJC, the activists’ blog post was “part of [their] ongoing efforts to influence governmental bodies by increasing the amount and tenor of coverage around the environmental consequences of the spill, and closes with an implicit call for its readers to take action.”

Today’s decision represents a very welcome victory for freedom of speech.

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Peter Vickery, Esq.

Speed-up at MCAD

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February 9, 2017:- Earlier this month the Massachusetts Commission Against Discrimination (MCAD) announced a significant cut in its backlog of cases.

In 2016, the agency substantially reduced the number of cases that were more than 2 years old. Of the 3,811 investigations currently open at the MCAD, just 318 remain over 2 years old, down from 1,134 in 2015, a reduction of 72%.

Approximately 3,000 new complaints are filed with the MCAD every year, so the dramatic reduction in the old cases is quite an achievement. Complainants and respondents alike should hope that the agency manages to maintain this level of efficiency.

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Peter Vickery, Esq.

 

OK to exclude gay men, says MCAD

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Must a charity that offers free reconstructive surgery to female victims of domestic violence also provide those services to a gay man? No, said the MCAD in a decision last September. Only two months earlier the Legislature and Governor had prohibited places of public accommodations from excluding men from women’s restrooms and locker rooms, so you might think the case would have grabbed the odd headline, but apart from this Mass Lawyers Weekly article it received surprisingly little media attention.

The respondent was the R.O.S.E (Regaining One’s Self Esteem) Fund, a non-profit that seeks to help women who are the survivors of domestic violence. In 2008 it declined to extend its services to Kevin Doran, whose male partner had assaulted him, leaving him with broken teeth and facial bones. With the support of Gay & Lesbian Advocates & Defenders (GLAD), Mr. Doran argued that the ROSE Fund is a place of public accommodation and that by turning him away it had violated the Massachusetts anti-discrimination laws.

In 2014 an MCAD hearing officer ruled in favor of the ROSE Fund, finding that the organization was not a place of public accommodation. In its appeal brief GLAD said the decision meant that “ROSE can now discriminate not only against men, but also on the basis of race, national origin, religion, sex, sexual orientation, and disability as well.”

Nevertheless the full three-member Commission upheld the 2014 decision on First Amendment grounds:

“The U.S. Supreme Court has recognized the venerable history of the public accommodation laws in Massachusetts, but when applied to expressive activity, the laws may not act to compel certain speech in violation of the First Amendment.”

For that reason, the Commission held that “a private charity set up with the express purpose of serving a narrow community may be allowed to make choices about whom to serve, based on the purpose of the organization and consistent selection criteria.”

This is a very narrow ruling. The MCAD limits its First Amendment expressive-activity exception to a thin sliver of entities: tax-exempt corporations set up to serve a “narrow community,” as opposed to regular businesses and individuals who do not have tax-exempt status and cater to the general public.  The decision sits awkwardly alongside expressive-conduct cases from other jurisdictions such as Elane Photography (photographers fined for refusing to photograph same-sex commitment ceremony) and Barronnelle Stutzman (flower arranger fined for refusing to design arrangement for her friend’s same-sex wedding). In those cases, the fact that the defendants’ businesses consisted of expressive activity did not exempt them from the legal obligation to provide their services at same-sex weddings. If those are not examples of the state “compelling certain speech” I don’t know what is.

And as for why tax-exempt corporations should have greater free-speech rights than the rest of us, that is not something the MCAD’s Doran decision addresses.

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Peter Vickery, Esq.

Marijuana and small businesses

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November 29, 2016:- In the general election the voters of Massachusetts approved a law to legalize, tax, and regulate marijuana. It was a convincing eight-point win for the legalization campaign: 54% to 46%. In my home town, Amherst, the margin was dramatically larger: 75% to 25%.

How the new law will affect Amherst and the surrounding communities was the focus of a forum I moderated recently for BLAAST (Business Leadership for Amherst Area Strategies) a joint program of the Amherst Area Chamber of Commerce and the Amherst Business Improvement District. To watch the video, click here. To read the related article in Business West, click here.

Given the nature of my practice, a few people have asked me about the effect of legalization  on trademarks, e.g. will marijuana sellers be able to register their trademarks?  Two facts are relevant.

The first is that there trademark owners can protect their marks via state law and federal law. Registering a mark with the state only protects it within that state, of course. For example, I have registered my mark (the flying-V logo) in Massachusetts, the state where I am admitted to practice law. If some lawyer started using the same mark in California and I sued for trademark infringement, my Massachusetts certificate of registration would not be sufficient evidence to afford me an automatic courtroom victory. To have the presumptive exclusive right to use my mark nationwide I would need to register it federally with the United States Patent & Trademark Office (USPTO).

The second important fact is that on the subject of marijuana there is now a clear tension between federal law and state law. In 1970 Congress passed the Controlled Substances Act, which prohibits the cultivation, possession, and distribution of marijuana. The Supreme Court of the United States upheld the statute in 2005, ruling that Congress had the necessary constitutional authority under the Commerce Clause. And although the People of Massachusetts have enacted the Regulation and Taxation of Marijuana Act, Congress has not repealed the Controlled Substances Act.

Nor has Congress amended the federal trademark statute, the Lanham Act. This matters because the Lanham Act only allows the registration of trademarks that are used in connection with lawful activities, which excludes the sale of marijuana (a federal crime). For so long as the Controlled Substances Act and the unamended Lanham Act remain the law of the land, it seems highly likely that the USPTO will carry on refusing to register marks used in connection with the sale of marijuana.

As a result of this federal-state tension, a few constitutional questions come to mind. For example, doesn’t the Supremacy Clause mean that the Controlled Substances Act preempts state law in this field? No. Why not? Because the statute itself expressly says so (section 903, if you’re interested). Nevertheless, couldn’t the federal government compel Massachusetts to enforce the Controlled Substances Act? No. Why not? Because of the Tenth Amendment.

So could the trademark section in the Corporations Division of the Massachusetts Secretary of the Commonwealth allow marijuana sellers to register their marks at the state level? My answer to this question is forthright and unequivocal: it depends.

On the one hand, the applicable state statute prohibits the registration of marks that consist of or comprise “immoral… or scandalous matter.” In view of the voters’ decision to legalize marijuana it seems unlikely that a judge would find that the drug qualifies as immoral or scandalous any more. Under Massachusetts trademark law, therefore, marijuana trademarks are beginning to look registrable.

On the other hand, there is a big difference between not enforcing the federal Controlled Substances Act and positively aiding and abetting its violation, a criminal offense under Section 846. This means that state trademark officials in Boston who register a mark that the applicant expressly uses in connection with the sale of marijuana could face federal criminal charges.

Would that happen? I doubt it? Could it happen? Yes. Some future U.S. District Attorney for the District of Massachusetts prosecuting Secretary of the Commonwealth William F. Galvin for issuing a certificate of trademark registration to owners of, say, BUDS-U-LIKE is not beyond the realm of possibility. At the very least, the idea could serve as the basis for a book, albeit one with very limited appeal destined for rapid remaindered status.

But, more realistically, what if an applicant uses the mark in connection with other products, not just marijuana, and makes no mention of marijuana in the state trademark application? Now that is a much more practical area of inquiry. Stay tuned.

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Peter Vickery, Esq.

Free speech for public employees?

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October 28, 2016:- If you are one of the 139,000+ people employed by state or local government in Massachusetts, today’s decision about speech-rights at work might be of interest.

The case involves an erstwhile employee of the Worcester County Sheriff’s Office, Jude Cristo, who complained about a colleague’s use of official time and facilities while campaigning for Scott Bove, a candidate running for Sheriff (unsuccessfully, as it turned out). After the election the new Sheriff, Lew Evangelidis, fired Cristo, who brought an action under federal law for violation of his civil rights, namely his right to freedom of speech guaranteed by the First Amendment.

Cristo lost. The Appeals Court applied the federal test, which protects the speech of public employees only if they are speaking as citizens and not “pursuant to their official duties.” Cristo’s complaints were pursuant to his duties, said the Appeal Court.

But in a footnote, the court left open the possibility that public employees’ speech rights under the Massachusetts Declaration of Rights might be greater than under the First Amendment. If the speech that triggered the firing was whistle-blowing, the court hinted, then the fact that it was job-related whistle-blowing would not necessarily prove fatal. In other words, the  employee might have a viable free-speech claim. Click here to read the case, Cristo v. Evangelidis.  The footnote in question is number 6 on page 15.

Election 2016: one call to make the day after

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October 26, 2016:- With less than a fortnight to go until the general election, now is the time to start thinking about the day after.

In addition to choosing the state’s presidential electors, in 13 days’ time Massachusetts voters will elect the state legislature, officially known as the Great and General Court of Massachusetts. Perhaps “elect” is too strong a word given that almost 80% of the seats are uncontested, earning Massachusetts a competitiveness ranking of 44 out of 50. Nevertheless, even without the ordeal of an actual race many freshly re-elected politicians tend to experience feelings of relief and generosity of spirit, which makes Election Day + 1 an ideal time to ask them for a favor.

If you are willing to make one post-election request of your state representative and senator, please consider asking them to co-sponsor a bill to restore some balance to the Massachusetts Commission Against Discrimination (MCAD). The goal is quite modest. If enacted, this piece of legislation would require the MCAD to make sure that it only handles cases that fall within its jurisdiction. In fact it does not even go that far. It puts the onus on the respondent (the person being accused of discrimination) to file a motion to dismiss, which would automatically stay, i.e. pause, the investigation until the MCAD determines that it does, in fact, have jurisdiction.

Why is this necessary? Because, as a report by the State Auditor showed, the MCAD routinely investigates cases that are outside its statutory remit, which not only contributes to the agency’s four-year backlog but is unfair to the individuals who are haled in and investigated without justification. Click here for my article on the subject in the Massachusetts Bar Association’s Lawyers Journal.

Invidious discrimination is real, and there are enough cases that do fall within the MCAD’s jurisdiction without the agency having to spend its budget investigating cases that do not. The new legislation would restore some balance. If you would like a copy of the bill and a bill summary for legislators and their aides, email peter@petervickery.com with the words “MCAD Bill” in the subject line.

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Tick, tock: Justice delayed

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Invidious discrimination does occur, and we are fortunate to have an agency tailor-made to address it, namely the Massachusetts Commission Against Discrimination (MCAD). But the current four-year backlog of cases at the MCAD is hurting litigants on both sides, employers and employees alike. Justice delayed is justice denied, as the saying goes. And most reasonable people would agree that the MCAD should not handle cases outside its jurisdiction.

So what should we do about the problem? Check out my article in the current edition of the Massachusetts Bar Association’s Lawyers Journal by clicking here.

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Attorney Peter Vickery

New MCAD guidance on transgender discrimination

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September 1, 2016:- Employers take note: In compliance with the Act Relative to Transgender Discrimination that Governor Baker signed into law in July, earlier today the Massachusetts Commission Against Discrimination (MCAD) filed with the Clerk of the House of Representatives its Gender Identity Guidance. Much of the document is old, a restatement of the MCAD’s 2015 Advisory, including the “best practices” e.g. “update personnel records, email systems, and other documents to reflect [an] employee’s stated name and gender identity, and ensure confidentiality of any prior documentation of an employee’s pre-transition name or gender marker.”

But the section of the Guidance regarding proof of gender identity and restrooms (Part III. D) is new. Readers will recall that the statute requires that employers allow employees and members of the public to use the restroom “consistent with their gender identity.” The Guidance states that “[r]equiring an employee to provide identification or proof of any particular medical procedure (including gender affirming surgery) in order to access gender designated facilities, may be evidence of discriminatory bias” (emphasis added).

This is important to note because an earlier part of the Guidance (III. A: Definition of Gender Identity) states that when it investigates claims of discrimination the MCAD may look at “medical records from medical or other professionals involved in the treatment or transition of the individual seeking, in the process of, or who has completed gender transition.”

In a nutshell: When an employee files a discrimination claim against the employer the MCAD can consider evidence of a medical procedure, but ahead of time — unless it wishes to invite an MCAD investigation — an employer must not ask an employee for proof of any particular medical procedure.

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Peter Vickery, Esq.

No sex please, we’re Bay Staters

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July 22, 2016:- When Governor Baker signs into law Senate Bill 2199, titled “An Act to Establish Pay Equity,” Massachusetts employment law will un-define (not merely re-define) an important word. Here is the text of the very first section of the bill:

Section 1 of chapter 149 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by striking out the definition of “Woman”.

So, farewell “woman,” a word that the statute used to define as “a female eighteen or over” but now does not define at all.

And farewell “sex,” too. Out with the hackneyed old phrase “no employer shall discriminate in any way in the payment of wages as between the sexes,” and in with the new: “No employer shall discriminate in any way on the basis of gender in the payment of wages.”

Pondering the replacement of sex with gender, and mulling over one of the other laws enacted this session, An Act Relative to Transgender Discrimination, which prohibits discrimination in public accommodations on the basis of gender identity, I see the potential for some mischief.

Could an employer charged with discriminating on the basis of gender raise the defense that the gender of her employees is information to which she is not privy? After all, gender is a matter of identity not physiology. I know this because I just read it in the relevant statute (clause 59, if you’re curious), which tells me in pertinent part:

“Gender identity” shall mean a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.

Got that? Gender identity means “gender-related identity, appearance or behavior.” If you are not satisfied with that definition and worry about the challenges of establishing gender identity in the courtroom, fear not; the Legislature recognized the need for greater clarity as to “when and how gender identity may be evidenced” and saw the need for guidance. In addition to having a stab at it themselves (the statute says that litigants may offer any of the following: “medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity, or any other evidence that the gender-related identity is sincerely held as part of a person’s core identity”) lawmakers delegated the task of crafting said guidance to the Attorney General and the Massachusetts Commission Against Discrimination. They are due to report to the Legislature by September 1, 2016.

In the meantime, what do we know? Well, we have replaced wage discrimination on the basis of sex (a matter of physiology) with wage discrimination on the basis of gender (a matter of identity). Of course, how a person “identifies” is not always obvious, and some think it shows rather poor manners to ask. So in the inevitable litigation, I can imagine a cross-examination of an employer along these lines:

Q. Does your employee Valery earn more than your employee Valerie for comparable work?

A. Yes.

Q. What gender is Valery?

A.  I don’t know.

Q. What about Valerie?

A. No idea.

Goodbye woman, goodbye sex. Hello protracted litigation.

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Attorney Peter Vickery

 

 

 

 

 

Commission creep: discrimination agency asserts jurisdiction in late-filed cases

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July 1, 2016:-  The term “mission creep” refers to a military operation that gradually expands beyond its stated objectives. A new report provides evidence of a government commission repeatedly extending its reach beyond the parameters laid out in its statutory remit, a phenomenon I hereby dub “commission creep.”

The State Auditor has published an official report on the Massachusetts Commission Against Discrimination (MCAD) and in addition to revealing the usual, garden-variety problems that bedevil state agencies (e.g. mismanagement, inefficiency,  and poor book-keeping) it confirms a long-harbored suspicion: The MCAD asserts jurisdiction where it has none. This matters not only to the small business owners who find themselves the target of costly investigations that drag on for years, but to all citizens who expect public servants to abide by one of the bedrock principles of constitutional government, namely the separation of powers (see Article 30 of the Massachusetts Constitution).

Despite clear statutory language confining its jurisdiction to cases filed within 300 days of the last allegedly discriminatory act, the Commission investigates cases filed after the deadline. And it does so on a scale that suggests something more than ineptitude, no mere unfortunate series of oopsy daisy events.

So that readers may judge for themselves, here is the text of the statute (section 5 of chapter 151B of the General Laws) in words as clear and unambiguous as the English language permits:

Any complaint filed pursuant to this section must be so filed within 300 days after the alleged act of discrimination.

The word must falls into the category of words legislative drafters call mandatory, as opposed to precatory or hortatory. In the vernacular, it is hard not mushy.

Nevertheless, the State Auditor’s report (p. 11) reveals that in the three-year period of the audit (2012-2015) the MCAD processed at least  123 separate cases where it lacked subject matter jurisdiction because the applicable statute of limitations had run its course:

[D]uring our audit period, MCAD accepted 123 complaints beyond the 300-day timeframe for complainants to file their complaints. MCAD regulations allow for this 300-day timeframe to be extended under certain conditions, but there was no documentation in the case files to substantiate that any of these complaints met those conditions.

I cannot tell whether the auditors independently identified the 123 cases or simply made note of the instances where the MCAD itself had determined that it lacked jurisdiction on the basis of the limitation period. If the latter, then the determination would have come at the end of the MCAD’s investigative phase, the point at which the Commission issues a Lack of Probable Cause (LOPC) finding. On average that point now arrives four years — yes, four years — after the filing of the complaint. In the meantime MCAD investigators will have required the employer to devote hours responding to questions and demands for internal documents and to attending “investigative conferences” at the agency’s offices.

Either way, this is an extraordinary finding on the part of the State Auditor. The 300-day deadline is not some off-the-cuff recommendation or flexible guideline but a statutory limitation. The Legislature decided that the deadline for filing a discrimination complaint with the Massachusetts Commission Against Discrimination (MCAD) is 300 days, and only the Legislature can amend a statute. By flouting the limitation period so often, the MCAD has arrogated to itself the power to legislate, a power the Massachusetts Constitution expressly reserves to the legislative branch.

The report bears out something I have suspected for some years, i.e. that the MCAD investigates cases where it clearly lacks jurisdiction. Because of my experience with the MCAD, after the 2014 gubernatorial election I sent the incoming Baker-Polito administration a proposal that would remedy the problem, and the associated problem of the MCAD improperly asserting jurisdiction over employers with fewer than six employees (another statutory limit on the MCAD’s jurisdiction called the “small-business exemption”). My proposal is this:

If a respondent files a motion to dismiss for lack of jurisdiction, the MCAD shall suspend its investigation until it has adjudicated the motion.

The proposal does not require action on the part of the Legislature. With a nudge from the Governor the Commissioners could make it happen via a simple amendment to the MCAD’s regulations, with proper notice and comment. Under my proposal, the MCAD would have to deal with the threshold matter of jurisdiction before putting the employer to the expense of a full-blown, years-long investigation.

I submitted this suggestion back in January 2015.  In view of the State Auditor’s findings, I shall re-send it.

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Peter Vickery, Esq.

Happy birthday, Massachusetts Constitution

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June 16, 2016:-  It was on June 16, 1780 (236 years ago today) that the Constitution of the Commonwealth of Massachusetts was deemed and declared ratified. Its principal author, John Adams, produced an operating manual for a self-governing commonwealth of free people that combines practicality with elegance. If you have a minute or two to mark the occasion of our Constitution’s anniversary, you may wish to read the Preamble:

The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquility their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.

The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.

We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts.

SJC announces another defense against claims for possession

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May 24, 2015:- Today the Supreme Judicial Court (SJC) sent back to the Housing Court a summary process case that started almost four years ago in August 2012. In its decision (in favor of the tenants) the SJC points out the need to promote “the legislative goal of just, speedy, and inexpensive resolution of summary process cases.” But it is not only connoisseurs of irony who will find the decision noteworthy. Although the case concerns an attempted post-foreclosure eviction, it refers to yet another defense against claims for possession (a defense, as opposed to a mere counterclaim) that may have an impact on the more run-of-the-mill landlord-tenant cases as well.

In May 2012, a mortgage company recorded the foreclosure deed  for home of Edward and Emanuela Rego. At the foreclosure sale, the Federal National Mortgage Association (Fannie Mae) took title. In August it started a summary process action in Housing Court to evict the Regos. In October 2012, the Regos filed their Answer, replete with 25 affirmative defenses and one counterclaim alleging that the mortgage company had violated the Consumer Protection Act, G.L. c. 93A.  According to the Regos’ counterclaim, the company had violated 93A by charging excessive late fees and sending deceptive notices about their eligibility for loan modifications.

Fannie Mae filed a motion for summary judgment in February 2014, almost two years after it had purchased the house. The Housing Court awarded it possession and dismissed the Regos’ counterclaim. In July 2014, the Housing Court entered final judgment in favor of Fannie Mae. But the judge did not expressly state whether he agreed with Fannie Mae’s argument that because he had awarded possession he now lacked jurisdiction to decide the 93A counterclaim. The judge scheduled a separate hearing this particular question, and dismissed the 93A counterclaim, but did not state why. This bit is important, by the way.

When Fannie Mae prevailed on its motion for summary judgment and the Housing Court awarded it possession, its lawyers may well have thought they could discern the proverbial light at the end of the tunnel. When the judge entered final judgment, the light may have shone a little more brightly. But today the SJC — which had reached down to transfer the matter to itself from the Appeals Court — vacated the summary judgment and reinstated the tenants’ counterclaims, thereby snuffing out the light and turning Fannie Mae back into the tunnel of Housing Court.

On appeal, the Regos argued that the mortgage company had failed to comply with the writing-under-seal requirement of the foreclosure statute, focusing on a statutory amendment enacted in 1906. The SJC’s decision goes into laudable detail explaining why this argument must fail. But the 93A counterclaim is another matter, the SJC held. Please note: The Regos raised 93A as a counterclaim, not a defense.

Fannie Mae argued that even if the 93A counterclaim was successful, it would not entitle the Regos to possession, only to monetary damages. Not so, contended the Regos: The court could deploy the equitable remedy of rescinding the foreclosure sale.

One of the organizations that responded to the SJC’s request for amicus briefs was Community Legal Aid, which stated that:

In certain cases, the equitable rescission of a foreclosure sale might not be the trial court’s remedy for violations of G.L.c. 93A. Nevertheless, the adjudication of different claims arising from the same facts supports both judicial economy and access to justice for low-income and elderly litigants who may be unable to advance claims independently.

Even if rescission is not on the cards and no right to possession is at issue any more, the Housing Court should retain jurisdiction, in other words. Of like mind, the SJC held:

“[U]nable to determine whether, in the context of the summary process action, the judge determined that the Regos’ G.L.c. 93A counterclaims and defenses did not entitle them to equitable relief affecting the right to possession, or whether he intended to consider that form of equitable relief, along with all other potential forms of equitable and monetary relief in the separate proceeding but erroneously concluded that he lacked the jurisdiction to do it.” (Emphasis added).

Of course, the Housing Court judge did, in fact, rule on the counterclaim, which tends to suggest that he had concluded that he had the jurisdiction to do so. Had he “erroneously concluded that he lacked the jurisdiction” he could have chosen a different course. But this absence of an express ruling on Fannie Mae’s jurisdictional argument led the SJC to sent the case back.

“All very interesting, I’m sure,” I hear you think, “but how does this affect me?”  Here’s how:

Landlords seeking possession should bear in mind that a tenant’s 93A counterclaim is an equitable defense.

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Peter Vickery, Esq.

 

 

Senses working overtime

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May 2016:- The federal Department of Labor has decided that from December 1, 2016, employers will have to pay overtime to salaried employees who earn up to $47,476.00 annually.  The current threshold is half that: $23,660.00.  Is the administration’s goal to shift more workers from salary to hourly, or is that just a likely byproduct?  In the words of English rock legends* XTC:

I’ve got one, two, three, four, five, senses working overtime,

Trying to take this all in.

For small business-owners wondering what the overtime rule will mean for them, click here for a brief guide from the NFIB.

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Peter Vickery, Esq.

* The word “legends” may exaggerate the band’s significance somewhat, I admit. Perhaps “most legendary 80s band from Swindon” would be fairer.

Issue more regulations, court tells agency

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May 17, 2016:- Today the Supreme Judicial Court (SJC) told the Massachusetts Department of Environmental Protection (DEP) that it has to issue more regulations in order to comply with the Global Warming Solutions Act, which the Legislature enacted in 2008. In Kain v DEP, the SJC ruled in favor of the Conservation Law Foundation and held that the DEP’s current regulations do not comply with the statute’s requirement of “declining aggregate [greenhouse gas] emissions limits.”

More to follow. In the meantime, two questions for diligent readers:

(1) By how much have our commonwealth’s greenhouse gas emissions declined since 2008?

(2) For bonus points, what is the main reason for the decline?

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Peter Vickery, Esq.

Boom! Security deposits get the full Alderaan

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April 29, 2016:- Security deposits are supposed to help cover the cost of damage to the landlord’s property. Yesterday, security deposits themselves sustained damage on an Alderaan scale.

In its decision in Meikle v. Nurse (see my earlier post) the Supreme Judicial Court held that a landlord’s violation of the security deposit statute provides the tenant not only with a counterclaim but provides a defense to possession. In plain English, a defense to possession means the tenant gets to stay.

For many years, Massachusetts landlords wise to the ways of the law have known that any mistake handling the security deposit (e.g. failing to give the tenant a piece of paper stating the name of the bank holding the deposit  and the account number) could result in them paying the tenant multiple damages plus the tenant’s attorney’s fees. But yesterday’s decision means that a mistake gives the tenant the right not just to money but to remain in the landlord’s property. Not forever, of course: The tenant “does not enjoy that right in perpetuity,” the SJC states reassuringly. To avoid a tenancy in perpetuity the landlord need only bring “a second summary process action for possession after he or she has remedied the violation of the security deposit statute.”

So what does bringing a summary process action for possession ordinarily involve? Serving a new notice to quit; waiting either two weeks or a full rental period depending on the nature of the notice; completing the new summons and complaint and making sure it aligns perfectly with the notice to quit (on pain of dismissal if it does not); serving a new summons and complaint (with the attendant sheriff’s fees) at the right time, not too early and not too late (on pain of dismissal for premature or tardy filing); filing the summons and complaint (again, not too early and not too late on pain of dismissal); paying the court’s filing fee; appearing in court; being presented with the tenant’s list of interrogatories, which automatically postpones the trial for 10 days; prevailing at trial (if the stars are aligned); seeking a writ of execution; watching the judge grant the tenant a stay of execution; and then, when the first stay has expired, watching the judge grant another stay of execution, and so on. Not quite perpetuity, perhaps, but close. The line between ad nauseam and ad infinitum starts to get a bit blurry after a year or so.

Will this new decision discourage landlords from taking security deposits? One would think so, those who fall into the rational-economic-actor category at any rate. Without security deposits, how will these rational economic actors insure themselves against the risk of tenants damaging their property (bearing in mind that an increase in the risk involved in renting increases the cost of renting)? Applying some basic economics, perhaps landlords will respond to an increase in the cost by raising the [fill in the blank].

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Peter Vickery, Esq.

Another campaign finance rule. KA CHING!

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As if they needed it this presidential-campaign season, here’s some good news for political consultants. The Massachusetts Office of Campaign and Political Finance (OCPF) is generating more business for them.

The latest state regulation aimed at controlling the funding of political speech  means that candidate committees and independent expenditure political action committees (IE PACs) will face penalties if they share consultants. How will they likely avoid that? By employing separate consultants, of course.

Massachusetts law prohibits IE PACS from coordinating with candidate committees. But proving coordination can be difficult, so the regulations create presumptions that put the onus on the PACs and candidate committees to prove they did not coordinate. Readers with backgrounds in criminal law, constitutional law, high-school civics, or cop shows may be familiar with the presumption of innocence: These presumptions are not like that presumption.

Under the new state regulation, there will be a presumption that the IE PAC and the candidate committee are coordinating expenditures if they use the same “political, media, or legal consultant, or polling firm.” They can rebut the presumption, i.e. prove their innocence, by demonstrating that they adhered to a written firewall policy, the sort of document lawyers and political consultants are good at drafting. Those who would prefer to avoid any entanglements in the first place should bear in mind the words of Han Solo on the subject: “That’s the real trick, isn’t it. And it’s gonna cost you something extra.” An extra consultant, that is.

Another provision states that there will be a presumption of coordination if an IE PAC republishes in whole or in part “a communication relating to a candidate that is posted on the candidate’s Internet or social media site.” So no mere copying from now on. This rule should encourage even greater creativity (a billable quality) by requiring IE PAC consultants to make their clients’ communications look and sound distinct from those on the candidates’ site. Whoever said red tape stifles business?

Somewhere in the Caribbean, I suspect, there floats a yacht named OCPF.

Peter Vickery_2012_focus

Peter Vickery, Esq.

SJC: unintentional housing discrimination unlawful

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April 13, 2016:- From now on, developers can be sued for housing discrimination in Massachusetts even if they did not intend to discriminate and complied with all applicable laws.

In a major decision, the Supreme Judicial Court (SJC) held that “a disparate impact claim is cognizable even if a defendant who is a private owner adheres to statutory, regulatory, and contractual obligations.”  The case is Burbank Apartments Tenants Association v. Kargman and it is consistent with Justice Kennedy’s majority opinion in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.  Like SCOTUS, the SJC rationalized its decision by analogizing to employment law: “[W]e conclude from our employment discrimination precedent that… [the disparate impact] theory of liability is cognizable under G.L. c. 151B, §§ 4(6), (7), and (11).”

For my earlier post on the subject, click here.

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Peter Vickery, Esq.

Free speech wins (four years after judge banned candidate from mentioning opponent’s name)

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March 31, 2016:- Yesterday the Supreme Judicial Court issued its decision in Van Liew v. Stansfield, a case I wrote about here involving two Chelmsford politicians. What a relief that the Court ruled that politicians should not use the anti-harassment laws to shut up their critics, and what a disgrace that the question even came up in Massachusetts in the Twenty-first Century.

By way of a reminder: When one politician (Van Liew) referred to the other (Stansfield) as corrupt and a liar, called her uneducated and stupid during a phone conversation, and allegedly said during the course of a meet-and-greet event at the local library “I’m coming after you,” Ms. Stansfield sought a civil harassment-prevention order. The judge not only granted the order, but even prohibited Mr. Van Liew from using Ms. Stansfield’s name online and in print, an order that brings to mind the 1982 Zimbabwean law that forbade jokes about the name of the president, Canaan Banana.

After the election, Mr. Van Liew sued Ms. Stansfield for malicious prosecution and abuse of process, and Ms. Stansfield brought a special motion to dismiss the case under the anti-SLAPP statute. Yesterday’s decision from the Supreme Judicial Court means that Mr. Van Liew’s case can go forward (four years after a judge banned him from uttering his opponent’s name during a political campaign). A welcome vindication of the rights of the citizen, to be sure, but how unfortunate that a candidate for public office would ask a judge for a gag order and how much more unfortunate that a judge would issue one.

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Peter Vickery, Esq.

Lopsided landlord law (plus quiz)

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Lopsided laws are annoying. But here in Massachusetts we have the right to require that our legislators observe the principles of justice and moderation in formulating our laws. It says so in the Massachusetts Declaration of Rights (article 18, to be precise). So immoderate, unjust laws do more than annoy; they flout some fundamental constitutional principles.

Which prompts me to ask, Why do we put up with the dramatically different burdens that the law places on landlords who hold security deposits vis-à-vis tenants who withhold rent?

If you are a Massachusetts landlord you are free to ask for a security deposit to insure against the tenants damaging your property. But if you do, you had better comply with every jot and tittle of the security-deposit law, M.G.L. c. 186, §15B. The amount of the security deposit must not exceed one month’s rent (not by so much as a dollar), you have to place the deposit it in a separate, interest-bearing account in a Massachusetts bank — not a New Hampshire bank or a Connecticut bank — and give the tenant (1) a detailed receipt within 30 days, and (2) annual statements showing the interest that the deposit has earned. The law goes into great detail about what you must and must not do with the security deposit at the end of the tenancy. Innocent mistakes can prove as costly as deliberate violations. Landlords who are curious about the kind of oversights that could trigger multiple damages and attorney’s fees should watch this short slide-show video by tenants’ lawyer Arthur Hardy-Doubleday, Esq.  If pushed for time start watching at the 3:45-minute mark.

In contrast, if you are a Massachusetts tenant and you wish to withhold rent from the landlord (i.e. go on rent strike) the list of legal formalities you have to comply with is considerably shorter. Here is a short video on the subject.

Rent withholding has a reasonable purpose. Tenants are allowed to withhold rent if the conditions in the dwelling are unsanitary, which encourages landlords to make repairs promptly upon request. Fair enough. Mind you, just try that rationale in the realm of workplace relations.

Employer: “Your performance is inadequate.”

Employee: “Are you going to fire me?”

Employer: “No, and you can’t quit either. You have to keep working for us. But we’re going to stop paying you.”

Any employers desiring an insightful predictive analysis of the likely outcome of such an interaction should click here.

If tenants withhold rent, do they have to set the money aside?  After all, if — many months, or even years, after the rent strike started — the Housing Court judge decides that the landlord is entitled to some or all of the bank-rent, it could be difficult for the tenants to come up with money. It takes above-average self discipline to save the money rather than spend it on all the other pressing day-to-day demands, especially in a culture that actively discourages thrift (have you looked at interest rates lately?).

But no, the law does not require that tenants place the withheld rent in escrow, so nor do tenants have to provide the landlord with documentary evidence stating the name of the bank and the number of the account.

To recap, landlords holding security deposits have to comply with a long list of legal requirements whereas tenants withholding rent have to comply with none. Landlords who fail to give tenants a detailed statement within 30 days face the prospect of paying treble damages and the tenants’ legal fees. Tenants who withhold rent even if a judge concludes that the withholding was not justified do not have to pay a penalty of any kind.

If you think of tenants as wards of the state and your image of landlords conforms to popular Dickensian stereotypes, or this, or this, this imbalance in the law may not bother you much. If so, I urge to watch a real landlord, Garth Meikle, argue a real case in front of the Supreme Judicial Court. To see and hear Mr. Meikle click here, and start at minute 18:38.  Mr. Meikle simply wanted his apartment back so that one of his children could move in, but the tenant alleged that Mr. Meikle had made a mistake with the security deposit.  By the way, the tenant received pro bono representation from a Harvard Law School clinic; the landlord had to represent himself.

On the other hand, if you think that the provision of affordable homes is a social good that we should encourage or at least not discourage, and that it might be time to restore some balance to landlord-tenant law, there is hope. Recently I went to the State House to listen to testimony about a proposal to amend the rent-withholding law  by requiring tenants to deposit the withheld rent into escrow. Will it pass? I shall keep you posted.

Now for the quiz that I promised in the headline.

If I had to choose one word to describe the current security-deposit law it would be persnickety, an adjective (possibly related to the Scottish pernickety or pernicky) that boasts the highest jurisprudential imprimatur available on this side of the Atlantic, namely a 2011 decision of the Supreme Court of the United States.

Question: Which justice penned the opinion?

Email your answer to peter@petervickery.com with the word persnickety in the subject line. There will be a prize for the first correct answer.* But, please, no pre-quiz use of Google, LexisNexis, etc. We use the honor system around here.

* A warm glow.**

** Subject to availability, satisfaction not guaranteed, and no warranties as to fitness for general or particular purpose. Some glow-feelers may experience side effects so before winning this quiz talk to your primary care physician, pharmacist, and faith-community leader.

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Peter Vickery, Esq.

Fighting dirty, or back down to earth in Belchertown

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Recently I was co-counsel on a case that involved a pile of dirt in Hadley, Massachusetts. Our client (owner of said pile) kept track of how much earth-product he removed in order to stay on the right side of a local bylaw, which provides that if you remove more than 25 cubic yards in any one year you need a permit. So he recorded each load, and stopped loading before he reached the legal limit. He is an ordained bishop by the way.

The town’s zoning enforcement officer did not measure the pile so had no way of knowing how much earth the owner had removed: more than 25 cubic yards or less. He could have obtained a warrant; he chose not to. But he imposed a fine anyway, which the Zoning Board of Appeals (ZBA) upheld.

Fortunately, after a trial in Belchertown District Court, the judge ruled in favor of our client and annulled the ZBA’s decision. Here are the Findings and Judgment.

Take-aways:

  1. Zoning appeals often go to Superior Court. This one didn’t. The lead attorney, Michael Serduck, recommended District Court, which turned out to be a more expeditious and cost-effective route.
  2. Municipal employees, elected officials, and local volunteers work hard, but sometimes they make mistakes. Proving that they were mistaken takes time and money (often in short supply for small business owners) but sometimes it’s worth the fight.
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Peter Vickery, Esq.

Petition by press release? Protected.

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February 24, 2016:- The anti-SLAPP law (M.G.L. c. 231, §59H) allows defendants to file a special motion to dismiss if they are being sued based on their petitioning activities. The statute defines the term “petitioning”as including “any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding.”  Today the Appeals Court issued a decision that expands the scope of the anti-SLAPP law and contracts the reach of defamation law.

The case is Blanchard v. Steward Carney Hospital, Inc., and others.  The plaintiff sued for defamation over statements that one of the defendants — William Walczak, the president of a hospital being investigated by several regulatory agencies — made to the Boston Globe. The defendant filed an anti-SLAPP motion arguing that his comments constituted “petitioning activity.” The Appeals Court agreed, and dismissed the defamation claim regarding the statements to the newspaper.  

What makes the case noteworthy is one of the two reasons the Court gave for its decision (to keep this post short I won’t go into the other one). The Court held that in the context of the public pressure on the Department of Mental Health (DMH) to close a unit in the hospital,

Walczak’s comments… qualify as protected activity because the investigation was ongoing, and it is clear that DMH, which was regularly on site at the hospital, would be paying attention, or at least would have access to the [Globe] articles. If Walczak did not respond, there would have been a serious risk that the situation would be reported in a manner that did not take into account the [the hospital’s] perspective.

This is not an altogether novel interpretation of the anti-SLAPP law. In 2005 the Appeals Court held that “petitioning activity” included statements to the media where the speaker, the widow of a firefighter, was lobbying the Legislature to pass special legislation granting her survivor’s benefits. Wynne v. Creigle, 63 Mass. App. Ct. 246 (2005). Her anti-SLAPP motion to dismiss a defamation claim succeeded because her public statements were “sufficiently tied to and in advancement of her petition.”

The rationale in Wynne v. Creigle seemed to be that the defendant was lobbying the Legislature (a petitioning activity) via the media. Legislators, after all, are supposed to be democratically accountable and responsive to the voters.

Today’s decision goes further. It means that the anti-SLAPP law now insulates from suit statements a speaker makes to the media where the initial target audience is the public but the ultimate audience is an unelected government agency, on the apparent rationale that the agency is amenable to public pressure. In short, this case places a new hurdle in the way of actions for defamation where the speaker who gave the media an allegedly defamatory statement (e.g. by issuing a press release) was using the media as a conduit to a regulatory agency.

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Peter Vickery, Esq.

Appeals Court vacates triple-rent award

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February 23, 2016:-  A case that started in the Western Division Housing Court in 2009, Clark v. Leisure Woods Estates, Inc., has provided some clarity as to how much money a tenant can get from a landlord under M.G.L. c. 186, S. 14. Judge Robert G. Fields found that the landlord violated the quiet-enjoyment provision in two different ways and awarded triple damages for each violation, i.e. two separate triple-damage awards. The Appeals Court vacated one of the two triple-damages awards as duplicative, holding that

only one triple rent award is available in a single proceeding under S. 14, no matter how many ways the landlord interferes with the tenant’s quiet enjoyment.

In a footnote, the Court noted that the statute “prohibits five separate categories of landlord misconduct” of which the Leisure Woods case involved just one (interference with quiet enjoyment).  The decision “does not address a situation in which the landlord violated two or more categories.” So if landlords violate the right of quiet enjoyment and violate S. 14 in other ways as well (e.g. cross-metering, failing to provide adequate heat) they still face the threat of having to pay multiple damages for those other violations in addition to the quiet-enjoyment violation. But at least they are only liable for one triple-damage award per category.

In a nutshell, the decision limits the exposure of landlords somewhat, and reduces the leverage of tenants’ counsel concomitantly. Tenants who show 57 varieties of violation of their right to quiet enjoyment should not expect 57 separate awards of triple damages.

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Peter Vickery, Esq.

Older, white man wins discrimination case

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Springfield, Mass. :- It doesn’t happen every day, or very often at all for that matter, so this case merits a mention. An employer terminated a 64-year old, White, male employee in favor of hiring a “younger more aggressive sales person who spoke Spanish and understood Latino culture.”  The older White man sued for age and ethnicity discrimination and won.

bateman cartoon

A hearing officer at the Massachusetts Commission Against Discrimination (MCAD) ordered the company to pay $11,100.00 in lost wages and $5,000.00 for emotional distress.  You can read the full decision (issued January 20, 2016) here.

Court strikes down racial segregation ordinance

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February 2016:– It was 100 years ago that the Supreme Court of the United States heard oral argument in Buchanan v. Warley, in which it struck down a Louisville, Kentucky, city ordinance that prohibited Black people from moving to city blocks where the majority of residents were White, and vice versa. The decision, written by Justice William R. Day, was unanimous. There was no dissent, not even from Chief Justice — and former Confederate officer — Edward Douglas White, who had voted with the majority in Plessy v. Ferguson. In observance of Black History Month, and in view of present-day calls for segregation on campus (strange but true), I offer a conspectus of Buchanan v. Warley, an important victory in the struggle for liberty and equality.

The case arose when Post Office employee and part-time newspaper publisher William Warley, who was Black and a leading member of the Louisville NAACP, entered a contract to buy a plot of land from real-estate agent Charles H. Buchanan, who was White. Both men opposed the city ordinance and went to court in order to test its constitutionality. To that end, their contract contained a clause that said the buyer (Warley) would only close the deal if he had the right under the laws of Kentucky and Louisville “to occupy said premises as a resident.” This condition, of course, was one that could not be met, and it provided Buchanan with a basis for asking the circuit court for specific performance, i.e. an order compelling Warley to pay for the property.

Neither the circuit court nor the Kentucky Court of Appeals would order Warley to pay for a property he could not lawfully occupy, reasoning that the ordinance gave Warley a complete defense. So the case went up to the Supreme Court of the United States, with Buchanan arguing that the ordinance could not provide Warley with a defense because it was unconstitutional. This was a situation the ordinance’s drafters had foreseen, and they had designed it with a constitutional challenge in mind.

The ordinance started out as a policy proposal from a Louisville resident by the name of W.D. Binford, who  worked as a manager at a local newspaper. He and his allies knew about the constitutional infirmities that had undone segregation ordinances in Baltimore and elsewhere, and planned a workaround.  For a detailed account of the campaign see Life Behind a Veil: Blacks in Louisville, Kentucky, 1865-1930, by George C. Wright; As Long as They Don’t Move Next Door: Segregation and Racial Conflict in American Neighborhoods, by Stephen Grant Meyer; and Race, Place, and the Law, 1836-1948, by David Delaney.

Binford pitched the enforced-segregation idea to a luncheon gathering of the city’s real-estate agents, a group called the Real Estate Exchange. He suggested a measure free of the flaws that had stymied other segregation ordinances. Perhaps because of the failure in Baltimore, Binford’s speech met with little enthusiasm. But he started organizing, and soon had enough White neighborhood associations on his side to make property-owners and politicians take notice.

So, although initially tepid, many real-estate agents came around to Binford’s suggestion. Not J.D. Wright, however, an officer of the Real Estate Exchange, who appeared alongside William Stewart of the NAACP to argue against the proposed ordinance at the city council hearing. But Wright and Stewart did not prevail. The force that they and other opponents of segregation were battling against was the political equivalent of rampant climate change.

Segregation was on the rise across much of the country, and one of its most ardent advocates, Woodrow Wilson, occupied the White House. In Louisville, Binford and his fellow activists were threatening to throw out any councilors who failed to back their proposal; they were well organized, vocal, and enjoyed the support of the local Democratic newspaper, the Times. Not surprisingly, in view of the grassroots activism, the city council voted 21:0 in favor, and on May 11, 1914, the mayor, a Democrat named John H. Bushemeyer, signed into law a measure titled,

“An ordinance to prevent conflict and ill-feeling between the white and colored races in the City of Louisville, and to preserve the public peace and promote the general welfare by making reasonable provisions requiring, as far as practicable, the use of separate blocks for residences, places of abode and places of assembly by white and colored people respectively.”

Banning Black people from living on the same block as White people was the way to “prevent ill-feeling,” the ordinance declared, so certain provisions were necessary. What sort of provisions? “Reasonable” ones. They did not appear all that reasonable to the members of the NAACP, who set in motion the test case.

When the case reached the Supreme Court, the plaintiff, Buchanan, was represented by three NAACP lawyers, including the organization’s president, Moorfield Storey. This article provides a concise description of Storey’s line of argument and the significance of the Court’s decision (scroll down to the section headed “civil rights and property rights”).

In addition to Storey’s, the NAACP filed an amicus brief written by William Ashbie Hawkins, a Black attorney with a practice in Maryland who “participated in almost every major civil rights case in Maryland during the first quarter of the Twentieth Century… [and] ran unsuccessfully as an independent candidate for the United States Senate [in 1920], a first for a black citizen of Maryland,” according to J. Clay Smith in Emancipation: The Making of the Black Lawyer, 1844-1944. It is worth remembering that Hawkins was born in 1862 in Lynchburg, Virginia — which at the time housed a prison camp for Union POWs — so, although the record is not clear, it is likely that he was born into slavery. Property rights and liberty of contract must have had a powerful import to someone the law had until recently considered to be property with no right to enter into contracts of his own.

The NAACP argued that the ordinance violated the Fourteenth Amendment’s guarantee of equal protection including “the right to acquire and possess property of every kind [and] to dispose of it and to live upon one’s own land.” In a phrase that the Court found persuasive, Storey argued that the ordinance “destroys, without due process of law, fundamental rights attached by law to the ownership of property.”

In response, the attorneys advocating for the validity of the ordinance (ironically, representing Warley) claimed that “the use of property and liberty of contract are subject to reasonable police regulations, and their enforcement does not deprive a person of property without due process of law.” Property rights are not absolute, they contended. After all, cities are free to limit the height of buildings and prohibit billboards in residential neighborhoods: The segregation ordinance was analogous to regulations of that sort, they claimed.

The Court came down on the side of the NAACP.  It acknowledged the government’s police power, noting that “legitimate business may… be regulated in the interest of the public.” But it concluded:

We think this attempt to prevent alienation of the property in question to a person of color was not a legitimate exercise of the police power of the State, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law. That being the case the ordinance cannot stand.

This Black History Month, I tip my hat to the lawyers and litigants of the NAACP who brought about the decision in Buchanan v Warley.  In particular, I honor the memory of Attorney William Ashbie Hawkins, and William Warley, whose service to justice the Wilson administration saluted by firing from him from his job in the Post Office. May they rest in peace.

Peter Vickery July 2012

 

Churchill victorious in 1945 after all

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In 1945, when it became clear that Winston Churchill and the Conservative Party had lost the general election, Churchill’s wife suggested that the loss might be a blessing in disguise. Churchill replied, “At the moment it seems quite effectively disguised.”

But there is no disguising the blessing in a recent Rule 1:28 summary decision by a panel of the Appeals Court with the fortuitous docket number 1945, in which a lawyer named Churchill won a noteworthy victory. The panel affirmed a jury award of $424,000.00 in favor of Attorney Churchill’s client, Dennis Craig, and — as icing on the blessed cake –granted Mr. Craig the costs and fees he incurred in defending the appeal .

The case is Craig v. Sterling Lion, LLC, and it concerned the Wage Act. The employee, Mr. Craig, sued his former employer for unpaid wages, and the jury found in his favor, awarding him treble damages and attorney’s fees.

The employer, Sterling Lion, LLC, appealed, arguing that (1) before starting his lawsuit Mr. Craig had failed to file a Wage Act complaint with the Attorney General, and (2) the trial judge had not given the jury an instruction about joint ventures. Sterling Lion hoped to characterize Mr. Craig as a joint venturer (similar to a partner) not an employee and, therefore, not entitled to the protection of the Wage Act.

The three-justice panel of the Appeals Court disposed of the first point by noting that during the trial the employer’s attorney told the judge that Sterling Lion would not be raising the issue as a defense and stipulated that the Attorney General had issued Mr. Craig with a right-to-sue letter. As for the second point regarding joint venture, when he gave evidence at trial Sterling Lion’s principal testified that Mr. Craig had not been a joint venturer or partner. In view of that testimony, the justices decided that the trial judge was correct in not giving the joint-venture instruction.

This Churchillian success story should remind Massachusetts employers of the dangers both of misclassifying employees and failing to pay owed wages.

Peter Vickery July 2012

Peter Vickery, Esq.

I can’t believe he didn’t say that!

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January 20, 2016: — Yesterday the Supreme Court of the United States denied certiorari in the matter of Sissel v. US Department of Health & Human Services, which means the Court will not hear arguments in the latest challenge to the Patient Protection & Affordable Care Act, also known as Obamacare. When this decision came to my attention I thought, naturally, of Otto von Bismarck.

Recently, I confess, I have been thinking too much about Otto von Bismarck, the statesman who unified Germany, invented the welfare state, and sported a walrus mustache of impressive proportions. This year we mark the 150th anniversary of the first attempt on Bismarck’s life, when a would-be assassin fired five shots into him at point-blank range. Bismarck grabbed the fellow, turned him over to some nearby soldiers, then strolled on home. No wonder they called him the Iron Chancellor. But that Chuck Norris-eque feat is not why I have been thinking about him.

My mind has been turning to Bismarck for two reasons. The first, although it has a constitutional aspect, is more suited to my political blog, VOX VICKERY, so I will not go into it here. The other reason has to do with legislative drafting, a subject on which I teach a course every other semester.

A little while ago, as I set about updating my syllabus, I thought of the old saying, “Laws are like sausages: nobody should see them being made.” If you have heard that expression, you may also have heard that its progenitor was Bismarck. That was my understanding, anyway.

But it was not Bismarck who gave the world the laws-are-like-sausages aphorism, at least not according to Wikipedia, which cites Fred R. Schapiro, editor of the Yale Book of Quotations.  He attributes the statement to one John Godfrey Saxe, a lawyer, poet, and failed candidate for the governorship of Vermont.

What is Mr. Schapiro’s basis for claiming that we owe the phrase not to Otto von Bismarck but, instead, to John Godfrey Saxe?  In his 2008 New York Times Magazine article titled “Quote… Misquote” Mr. Schapiro points to the March 29, 1869, edition of the Daily Cleveland Herald and the March 27, 1869 edition of the University of Michigan’s University Chronicle, both of which credited the phrase to Saxe, who also happened to boast a walrus mustache, albeit not one to rival Bismarck’s (see below, and judge for yourself).

bismarck and saxe

Only Saxe did not say “laws are likes sausages: nobody should see them being made.”  Rather, he said “laws, like sausages, cease to inspire respect in proportion as we know how they are made,” which is similar, but not the same.

The difference between what Bismarck is supposed to have said and what Saxe is supposed to have said is subtle but real.  To say that the more you know about lawmaking the less you respect the law is different from saying that the lawmaking process is something you should not see. The statements are not contradictory, just distinct. Each conveys a meaning separate from the other.

So here is the lesson for legislative drafters. Regardless of whether laws are, in fact, like sausages, they certainly have something in common with quotations: Disputes can arise over their authorship and meaning.

Authorship matters in legislative drafting because not just anybody can enact statutes.  I can’t, for example, and nor can you. The authority to legislate vests in the legislature, although the executive has a role at the end of the process, i.e. signing/vetoing.  Our federal and state constitutions make clear that the executive must not legislate, and nor may the judges. This is what we mean by the separation of powers.

Sometimes it matters which branch of the legislature authors a bill. And that was the issue in Sissel v. US Department of Health & Human Services, the case the Supreme Court declined to decide yesterday. The petitioner, Sissel, alleged that the Affordable Care Act is unconstitutional because it originated in the Senate. Why would that matter? Because all money bills must originate in the House. And how do we know Obamacare was a money bill? Because in NFIB v. Sebelius the Supreme Court ruled that the charge the law imposes on people who do not buy health insurance is a tax.

If a bill creates or varies a tax it is a money bill. QED. Devoted readers may remember that I wrote an amicus brief on this subject last year when the Supreme Judicial Court was resolving a disagreement between the two chambers of the Massachusetts Legislature over the state budget. For a quick refresher, click here.

So authorship is important. Like authorship, meaning is a factor that matters a great deal in legislative drafting. Take, for example, another Obamacare case, King v. Burwell, about whether subsidies are only available to people who bought their health insurance through state exchanges as opposed to federally-established exchanges. The Supreme Court had to decide whether the statutory phrase “established by the state” simply meant what it says or meant “established by the state or the federal government.” The latter, held the Court, even though the relevant part of the statute, section 36B, clearly says “established by the state” not “established by the state or the federal government.”

The Court held that “in context” (two little words that, when placed side-by-side in a judicial opinion, can stop an attorney’s heart) the phrase “exchanges established by the state” could mean all exchanges, not merely those established by the state but also those established by the federal government. Meaning matters, in statutes and quotations alike. As the Court demonstrated in Burwell, a statute’s meaning can undergo a significant shift between Point A when the legislature creates it, Point B when it enters the maw of the judiciary, and post-digestion Point C when it emerges.

Which brings us back to Otto von Bismarck who famously did not say “laws are like sausages: nobody should see them being made.” Seeing laws being made may not be all that appetizing, but seeing them being digested can make you positively green around the gills. You can quote me on that.

Before firing, read this

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Resist the temptation to fire first and ask questions later. That is the headline and key message of my latest article in Business West magazine, which you can read by clicking here.

 

One major lesson from the “blind barber” case

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The recent decision from the Massachusetts Commission Against Discrimination (MCAD) in Nixon v Tony’s Barber Shop has attracted some media coverage, e.g. this story in the Boston Herald and another in the New York Daily News.  The MCAD awarded the visually-impaired Joel Nixon $100,000.00 because his employer, Tony’s Barber Shop, fired him after he tripped over a customer’s legs, a chair, and a ladder.

Perhaps the most noteworthy fact for employers is that the respondent, Tony’s Barber Shop, defaulted. At the hearing,  there was nobody to advocate for the employer (by raising the possibility of a BFOQ, for example) and the only witness was the complainant himself, Mr. Nixon. The key lesson for employers? Show up!

Pipeline Answers: What Counts Toward Just Compensation? Stigma and Hassle

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What rights do landowners have when a pipeline company takes part of their property by eminent domain? As I mentioned on Monte Belmonte‘s show on The River, although federal law governs the taking itself, state law determines the meaning of “just compensation.” What, then, is “just compensation” for an easement over part of your land?

Here in Massachusetts the courts start their analysis with the applicable statute, M.G.L.c.79, s.12, which provides that in the case of a partial taking the assessment shall include “damages to the part not taken.” So the landowner needs to show the diminution in the fair market value of the whole parcel (both the taken part and the remaining part). In other words, what would a hypothetical willing buyer pay for the property as a whole after it had been on the market for a reasonable length of time. At this point readers may wonder how a judge would arrive at that hypothetical buyer’s price. The following case provides some guidance.

When the United States District Court for the District of Massachusetts considered this issue, it decided to take into account several factors, including (1) “stigma,” i.e public fear of potential hazards (even exaggerated fears based on misinformation) and (2) the possible additional construction expenses and the “administrative hassle” of having to abide by the company’s rules. The figure the judge ordered was far in excess of what the company deemed reasonable, so the company appealed. But the Court of Appeals for the First Circuit affirmed the judge’s decision. Portland Natural Gas Transmission Sys. v. 19.2 Acres of Land in Haverhill, 195 F.Supp.2d 314 (D.Mass. 2002) aff’d 318 F.3d 279 (1st Cir. 2003).

What does this mean for landowners in Berkshire and Franklin Counties whose properties the underground pipeline might cross? When preparing for the eminent domain case, they should make sure their attorneys have garnered abundant evidence of how the taking will diminish the fair market value of their property, including photographs and testimony from expert and lay witnesses alike. In putting their evidence together they should bear in mind that the court should take into account the “stigma” and “hassle” factors.

If you have questions about what might constitute “stigma” and “hassle,” please feel free to post a comment/call/email.

Issues page update

March 10, 2017

petervickery

Source: Issues page update

New harassment enforcement guidelines

February 3, 2017

petervickery

February 3, 2017:- The Equal Employment Opportunity Commission (EEOC) is soliciting public comment on its proposed new Unlawful Harassment Enforcement Guidelines. You can read the guidelines and comment on them here.

One item that employers should note: Harassment of a “transgender individual ” can include “using a name or pronoun inconsistent with the individual’s gender identity in a persistent or offensive manner.”

The word “or” means that the use of the pronoun/name need only be offensive, and not necessarily persistent, in order to qualify as harassment under these enforcement guidelines.

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Peter Vickery, Esq.

 

 

Hospital settles with flu vaccine refuseniks

January 24, 2017

petervickery

May a hospital fire employees who refuse the flu vaccine on religious grounds? Saint Vincent Health Center in Erie, Pennsylvania, must have thought so back in 2014 when it terminated the employment of six vaccine refuseniks, but now that it has agreed to shell out $300,000 in back-pay and compensatory damages it probably realizes that the short answer is no. The Equal Employment Opportunity Commission (EEOC) press release states:

“While Title VII does not prohibit health care employers from adopting seasonal flu vaccination requirements for their workers, those requirements, like any other employment rules, are subject to the employer’s Title VII duty to provide reasonable accommodation for religion… In that context, reasonable accommodation means granting religious exemptions to employees with sincerely held religious beliefs against vaccination when such exemptions do not create an undue hardship on the employer’s operations.”

Last year I wrote an article about Boston Children’s Hospital fending off a discrimination complaint after it fired an employee who had refused the flu vaccine on religious grounds. The judge found that the hospital had offered reasonable accommodations and the accommodation that the employee requested would have imposed an undue hardship on the hospital.

The lesson for health-care providers?  If employees object to the vaccine on religious grounds, work hard with them to devise some reasonable accommodations and document those efforts carefully and thoroughly.

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Peter Vickery, Esq.

Five minutes to shake up the status quo?

January 23, 2017

petervickery

President Reagan had this to say about the status quo: It’s Latin for “the mess we’re in.”

Wouldn’t it be great if we shook up the status quo here in Massachusetts by starting to roll back the regulatory state?

Representative Peter Durant (R-6th Worcester) is sponsoring a bill to do just that. It’s called “An act streamlining the investigation process of discrimination complaints” (HD 133) and it would bring a much-needed reform to the Massachusetts Commission Against Discrimination (MCAD).

And that’s the reason for this request. I am asking you to call or email your state representative and ask him/her to co-sponsor the bill. The deadline for signing on as a co-sponsor is Friday, February 3, by the way.

We’re trying to solve a real problem here. Running a small business is hard enough without having to deal with unfair charges of discrimination. But as a report by the State Auditor showed, the MCAD routinely investigates cases that are outside its statutory remit. This not only contributes to the agency’s four-year backlog, but is also fundamentally unfair to the individuals who are haled in and investigated without justification. Click here for my article on the subject in the Massachusetts Bar Association’s Lawyers Journal.

The goal of Representative Durant’s bill is simple: To ensure that the MCAD only handles cases where it actually has jurisdiction.

That’s pretty reasonable, wouldn’t you agree?

The bill would not take away anybody’s rights, and it would not make it harder for people to file discrimination complaints. It would simply require the MCAD to investigate a complaint if — and only if — it has the legal authority to do so.

The bill even puts the onus on the respondent (the person being accused of discrimination) to apply the brakes. A respondent would have to file a motion to dismiss in order to stay (i.e. pause) the investigation until the MCAD determines that it does, in fact, have jurisdiction.

That’s even more reasonable, isn’t it?

Now we need co-sponsors. Building a strong list of co-sponsors will send a message that the measure has broad support among politically engaged and active citizens — citizens like you.

So would you set aside just five minutes today to make one phone call or (if you prefer) send one email?

If you don’t know the name of your state representative, go to malegislature.gov, click “Find Your Legislators” on the left side of the page, and fill in your address. When you see your representative’s picture, click the name and the contact details will appear.

Then please call your representative’s State House number or send an email.

Tell the aide that you are a constituent and you want your representative to consider sponsoring “An act streamlining the investigation process of discrimination complaints” (HD 133) sponsored by Representative Peter Durant. Close by thanking the aide for their time and for the representative’s consideration. And that’s it!

So will you set aside five minutes to help shake up the status quo?

Thank you.

— Peter

P.S.  Just in case you want to know exactly what the bill says, here is the text in full:

“SECTION 1.  The second paragraph of section 5 of chapter 151B as appearing in the 2014 Official Edition is hereby amended by inserting after the first sentence the following:- If within 21 days of service of the complaint a respondent files a motion to dismiss for lack of jurisdiction such a motion shall act as an automatic stay of the investigation pending the adjudication of the motion.  The investigation shall not resume unless and until the commission determines that it has jurisdiction.”

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Peter Vickery, Esq.

OK to exclude gay men, says MCAD

January 6, 2017

petervickery

Must a charity that offers free reconstructive surgery to female victims of domestic violence also provide those services to a gay man? No, said the MCAD in a decision last September. Only two mont…

Source: OK to exclude gay men, says MCAD

Court cuts off gas contracts

August 17, 2016

petervickery

August 17, 2016:- If you are interested in electricity prices, today’s decision from the Supreme Judicial Court (SJC) affects you. The case saw the Conservation Law Foundation and the power company Engie Gas (formerly GDF Suez) on the same side. Neither wanted to see electricity companies able to buy pipeline capacity, as this article in the Springfield Republican explains.

The question before the SJC: May the Department of Public Utilities  (DPU) approve contracts that electricity-distribution companies want to enter into with natural-gas power generators?

The answer: No. That is the abridged version of today’s 37-page decision.

The impact? Find out by looking at your electricity bills over the months and years ahead.

Note to grammarians and students of legislative drafting: You too may be interested in this decision because it discusses redenda singula singulis, AKA the rule of the last antecedent.

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Peter Vickery, Esq.

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