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Free speech victory for enviro bloggers

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.

Hospital settles with flu vaccine refuseniks

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.
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OK to exclude gay men, says MCAD

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.
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Marijuana and small businesses

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.

Court cuts off gas contracts

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

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.
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Happy birthday, Massachusetts Constitution

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.