No ambiguity in today’s Appeals Court ruling

If I had an award to give for unambiguous judicial writing, it would go to Associate Justice Janis M. Berry whose opinion in Ellis v. DIA is well worth reading. It is as clear as something large seen from very close up by a person with perfect vision.

The plaintiff, James Ellis, represents workers compensation claimants. To help injured workers find lawyers to steer them through the workers compensation system, the law allows claimants to collect their legal fees in addition to compensation. Before signing off on lawyers’ fees, the administrative judges at the Department of Industrial Accidents (DIA) have to review the bills. The reasons for this requirement are too obvious to state. But Attorney Ellis claimed that DIA judges have no right to scrutinize his bills.

Attorney Ellis has visited the Court of Appeals quite often, it seems, but his latest sashay was too much for Justice Berry, who described it as “just one small part of a pattern of Ellis’s frivolous litigation in advancing legally unfounded claims on appeal.”  With regard to the law’s provision of legal fees for claimants, she wrote that although important it is “not carte blanche to an open credit line for an attorney to draw upon without validity.”

The decision ends by calling the appeal “frivolous and worthy of sanctions” followed by words that no attorney ever wants to read: “[W]e refer this case to the Board of Bar Overseers.”

Clear enough?

justice janis m berry
Associate Justice Janis M. Berry

New regulations for ballot law commmission

The State Ballot Law Commission (of which I am a member) is proposing a new set of regulations that, if adopted, would govern the body’s adjudicatory proceedings. To read them click here.

To comment, you can either show up at the public hearing, which will be held in One Ashburton Place (17th floor), Boston, at 10:00 a.m., September 8, or file a written submission by noon that day.

For any of my Legislative Drafting students who happen to be reading, please note that this approach, called notice-and-comment rulemaking (for obvious reasons) is how agencies are supposed to operate: First, determine the extent of the agency’s constitutional and statutory authority; second, draft regulations consistent with that authority; third, publish them for public comment; fourth, meaningfully review the comments; and, finally, only then adopt the regulations.

SBLC_June 13 2014
State Ballot Law Commission

Sometimes agencies act in a more de haut en bas manner, unilaterally adopting polices and practices without the rigmarole of notice and comment. Keep an eye out for this sort of behavior. With a few informal guidelines here and a handful Dear Colleague letters there, an agency gradually becomes less and less accountable, we inch further away from the rule of law, and we lose a little more of the “self” part of self government. Efficiency is a virtue, but not the only one. Although time-consuming, the notice-and-comment process is worth the effort.

When sex discrimination is OK

In some circumstances an employer may discriminate on the basis of sex without breaking the Massachusetts anti-discrimination law. As justification, the employer needs to show that being a woman — or, indeed, a man — is a bona fide occupational qualification (BFOQ). In other words, the very nature of the particular job requires a woman not a man, or a man not a woman.

In Pugsley v. Boston Police Department the Supreme Judicial Court (SJC) explained what sort of evidence will not pass muster when using sex as a BFOQ. The plaintiff, Sean Pugsley, had scored very well on the police academy exam but the Boston Police Department did not pick him. It did, however, hire women who had scored less well than Mr.Pugsley because they were, well, women.  The department’s reason was statistical disparity: About 13% of the officers were female whereas “the number of females involved in police contact as a result of alleged criminal activity” was about 18%.

Evidence of this caliber will not suffice. The SJC stated that “statistical disparities, without more, will generally be insufficient to support a BFOQ” (emphasis added).  What sort of “more” can an employer not do without? In a footnote the Court suggested that employers should target their recruitment efforts more carefully before resorting to the blunt tool of overt sex discrimination. So statistics plus evidence of more subtle, less obvious efforts to discriminate, are probably OK.

One aspect of the statistical disparity that did not come up was the corollary of the fact that only 18% of those individuals who find themselves interacting with Boston police officers for “alleged criminal activity” are women. Therefore 82% are male. If the statistics for Boston resemble those for Massachusetts as a whole and women and men each make up about 50% of the population, an objective observer* would expect the rates of criminal activity to be 50:50 as well.

So it is clear from the statistics that female crooks are offending with impunity while their male counterparts are being deliberately targeted because of the anti-male bias of Boston’s overwhelmingly male police force, or are suffering from the form of discrimination known as disparate impact. After all, what other possible explanation could there be?

* From a different dimension

Peter Vickery, Esq.
Peter Vickery, Esq.

Rat’s Nests and the NBA: SCOTUS on Disparate Impact

This blog post from the law firm of Faegre Baker Daniels provides a clear overview of the Supreme Court’s recent decision about the Federal Fair Housing Act (FHA). The Court held that the FHA prohibits policies and practices that have a disparate impact on protected classes, even without any intent to discriminate.  The blog post contains a link to the decision, and I recommend reading both dissents, Justice Thomas’s and Justice Alito’s, as well as the opinion of the Court by Justice Kennedy.

Justice Thomas discusses a variety of racial imbalances, including the fact that “for roughly a quarter-century now, over 70 percent of [NBA] players have been black,” and states, “To presume that these and all other measurable racial disparities are products of racial discrimination is to ignore the complexities of human existence.”

Justice Alito opens with the words, “No one wants to live in a rat’s nest” (a reference to another recent disparate-impact case) and declares, “Something has gone badly awry when a city can’t even make slumlords kill rats without fear of a lawsuit.”

Now if that doesn’t whet your appetite for the dissents, I don’t know what will.

Money, money, money, etc.

Is it an appropriations bill or a money bill? That is the constitutional question currently before the Supreme Judicial Court (SJC) as the result of a disagreement between the two chambers of the Massachusetts Legislature. The dispute concerns the state budget and taxes.

The origination clause in the Massachusetts Constitution says that money bills have to originate in the House of Representatives, not in the Senate. But when the House passed the general appropriations bill for 2016, the Senate noticed two sections about tax expenditures that (in the Senate’s opinion) provided an opportunity to change the tax laws. Not so, said the House, and asked the SJC to provide an advisory opinion on whether the Senate’s action violated the origination clause.

When the SJC asked for amicus briefs, I filed one. This news story in The Republican/Masslive describes the issue and mentions my brief.

Peter Vickery, Esq.
Peter Vickery, Esq.

New Real Estate/Employment Law Decision from SJC

June 3:- Can a real estate brokerage classify a salesperson as an independent contractor without breaking the law?

A review of the independent contractor statute (Chapter 149, Section 148B) would suggest not. According to that statute a worker is an employee, as opposed to an independent contractor, unless the employer can show that the worker’s services are “performed outside the usual course of the [employer’s] business.”

By definition, the work of selling real estate is within the usual course of the real estate business. Not even the most flexible mental gymnast could persuasively describe the work of a real-estate salesperson as falling outside the usual course of a real-estate businesses’s business, at least not with a straight face.

But today in Monell v. Boston Pads, LLC,  the Supreme Judicial Court (SJC) held that yes, a real-estate salesperson may indeed work as an independent contractor, a decision that should come as a relief to those in the real estate business.

The reason for the Court’s decision has to do with the interplay of two statutes, and a canon of statutory construction. One statute is the independent-contractor statute, which deals with employment in general. The other deals specifically with real-estate licensing (Chapter 112, Section 87R) and expressly provides that salespersons may affiliate with brokers as either employees or independent contractors. If the independent-contractor statute controls, then salespersons must be employees, whether they like it or not. If the real-estate licensing statute controls, they can be independent contractors.

To resolve the conflict, the SJC relied on the principle that “a specific statute controls over the provisions of a general statute.” In this case, the more specific statute is the one that governs the real-estate business, which, therefore, prevails over the general independent-contractor statute.

As I mentioned in a previous post on this subject, in Massachusetts the independent contractor remains on the endangered list but is not yet extinct.

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Peter Vickery, Esq. 413 549 9933