Posts from the ‘massachusetts’ Category
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.
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.
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.
January 24, 2017
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.
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.
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.
August 17, 2016
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.
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.
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.
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.
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?
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].
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.
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 firstname.lastname@example.org 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.
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.
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.
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.
October 25, 2015
I see that the declared mission of City of Boston’s treasury department is “to collect and transfer all funds due to the City.” Well, as a result of a generous jury decision, the treasury department is going to have to transfer funds in the amount of $11 million to one of its own employees, senior administrative assistant Chantal Charles. Congratulations to all concerned — parties, counsel, and jury — for demonstrating that whatever happens in Washington, D.C., at least local government can accomplish its mission.
On a completely different subject, here’s a guide to public choice theory.
October 15, 2015
In the business of intimate hair removal, it turns out that in Massachusetts it is not only unkind but costly for employees to joke about zapping a client in the scrotum with a laser. By “costly” I refer to a figure north of one quarter of a million dollars ($260,000.00, in fact), which is the sum of money that a respondent in a discrimination suit is going to have to part with following a decision from the Massachusetts Commission Against Discrimination (MCAD), namely Barnes v. Sleek, Inc., et al.
The bare facts are these: The respondents hired the complainant, Mr. Barnes, to manage a spa in the Burlington mall, where patrons could pay for certain hair removal procedures, such as bikini waxing. Mr. Barnes was only there a week, however. He was fired after complaining to his boss about the employees’ habit of laughing and joking about what the MCAD describes as “clients’ genitals and private parts” (emphasis added; until today I had thought that genitals were private parts, not something separate and additional to them). As an example, the decision refers to a “discussion about intentionally ‘zapping’ a male client in the scrotum with a laser.”
To make matters worse, at least so far as Mr. Barnes was concerned, “the outgoing manager of the spa flashed her breasts to a web-camera.” She expressed the hope that the owner was watching. And all of this going on in the Burlington mall, just a few doors down from Pretzel Twister and the Cheesecake Factory.
Perhaps it is my British school-boyishness, but given the nature of the work, i.e. pubic topiary, I would have considered ribaldry to be a what lawyers call a BFOQ, or a bona fide occupational qualification. Not so the MCAD, which awarded Mr. Barnes $41,641.67 for lost wages and $150,000.00 for emotional distress. In addition, the Commission imposed a civil penalty of $50,000.00 and ordered the respondents to pay a hair over $18,000.00 in legal fees, with interest running at 12%. Altogether that comes to more than a quarter of a million dollars, which is at least as eye-watering as the prospect of a laser zap to the private parts, including but not limited to the genitals.
Readers should note that the respondents did not mount a defense. They did not submit an answer and position statement nor did they, in the words of the decision, “cooperate in the Commission’s investigation.” Although it may not have made any difference to the finding of retaliation — and I am speculating here — the lack of a robust defense may have affected the size of the damage award. With a bit of care and attention, the respondents might have been able to shave off a few thousand dollars.
October 12, 2015
Should politicians be allowed to use the harassment-prevention laws to silence their opponents? That is one way to frame the question that the Supreme Judicial Court (SJC) will consider in December. Here is the way the SJC frames the political-speech question presented by Van Liew v. Stansfield:
Whether statements made by the plaintiff, allegedly in the context of “political discourse,” could have qualified as acts of harassment for purposes of G. L. c. 258E; whether a request by the defendant, an elected official, for a harassment prevention order under c. 258E “was devoid of any reasonable factual support or any arguable basis in law” for purposes of the anti-SLAPP statute, G. L. c. 231, § 59H, where the plaintiff’s statements on which the request was based allegedly were “political speech” and made to express the plaintiff’s “version of what was happening in the town.”
In a nutshell, during a municipal election campaign in Chelmsford one local politician (Stansfield) obtained a court order banning another local politician (Van Liew) from using Stansfield’s name “in any email, blog, twitter, or any document through the internet, television show, ad, or otherwise.” In an ex parte hearing (i.e. without the opposing party) Stansfield alleged that Van Liew’s conduct amounted to harassment under M.G.L. c. 258E. The court later decided not to extend the order. Van Liew then sued Stansfield for malicious prosecution and abuse of process. After the district court dismissed his complaint and the appellate division re-instated it, the matter ended up on docket of the commonwealth’s high court.
Given the case’s implications for freedom of speech, it is not surprising that the SJC has requested amicus briefs. But with oral arguments scheduled for December, there is very little time for interested parties to weigh in.
The question before the court is whether the statements that Mr. Van Liew made to Ms. Stansfield could constitute harassment, which the statute (chapter 258E) defines as “three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.” I shall write more on that question in a later post. In the meantime, an equally important question is one that the SJC has not articulated in its request for amicus briefs, namely whether a judge issuing a harassment-prevention order should engage in such sweeping prior restraint as the judge in this case.
At Ms. Stansfield’s request, the judge prohibited Mr. Van Liew from using Ms. Stansfield’s name in any TV appearance, advertisement, email, blog, or tweet. Because of this, according to his brief, Mr. Van Liew cancelled a Meet the Candidate show that had been going to run online and on TV. By way of the anti-harassment law Ms. Stansfield achieved a result that she probably could not have obtained via defamation law.
If Ms. Stansfield had been suing Mr. Van Liew for libel, and sought a preliminary injunction to prevent Mr. Van Liew from publishing further defamatory statements about her, I suspect the judge would have looked at her request through First Amendment lenses and denied the request.
So I have a question, particularly for any of my Legislative Drafting students who are reading this: Is this something best left to the discretion of a trial judge, or should the Legislature amend chapter 258E to make clear that it must not be used to chill freedom of speech? If you think a legislative fix is necessary, what would your proposed amendment say?