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Posts tagged ‘constitutional law’

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: 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.

Justin Sargent 6

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.

Justin Sargent 6

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.

Court to rule on freedom of political speech in Massachusetts

October 12, 2015

petervickery

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.

If you would like to see and hear the litigants, click here for Ms. Stansfield (from minute 12:25) and here for Mr. Van Liew (from minute 19:40).

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Colleen Stansfield: seated, left

roland van liew

Roland Van Liew

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?

New regulations for ballot law commmission

August 23, 2015

petervickery

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.

Doctoring the definition

March 3, 2015

petervickery


Is a physical therapist a physician? Yes, said the Supreme Judicial Court, so long as we are talking about “physician” in the context of motor-vehicle insurance law.

In Ortiz v. Examworks, Inc., the Court looked at Massachusetts General Laws chapter 90, section 34M, paragraph three, which requires that people applying for personal injury protection (PIP) benefits have to submit to “physical examination by physicians selected by the insurer.” It held that the term “physician” includes physical therapists.  This is a case where the Court arrived at the right destination by an unfortunate route, using statutory construction to solve a problem that was the Legislature’s to fix.

When the plaintiff, Flor Ortiz, applied for PIP benefits the insurer, Progressive, asked Examworks to provide an independent medical examination (IME). The IME that Examworks set up for Mr. Ortiz was with a physical therapist, not a medical doctor. Although the physical therapist’s report did not become part of the court record, on the basis of what happened next it seems fair to surmise that Mr. Ortiz deemed it a disappointment.

Mr. Ortiz sued, alleging that by submitting him to an exam with a physical therapist not a medical doctor Examworks had violated, among other things, the Consumer Protection Act (which provides for multiple damages and attorney’s fees). Examworks filed a motion to dismiss, which the Superior Court granted, and Mr. Ortiz appealed. The case ended up before the Supreme Judicial Court. Ruling that the court below was correct to dismiss the case — a just outcome, I believe — the SJC chose to imbue the word “physician” with more elasticity than modern custom and usage would seem to allow.

What did the Legislature mean when it used the word “physician,” asked the SJC? The relevant provision became law in 1970, so the Court decided to consult the 1969 edition of the American Heritage Dictionary, which states that the word “physician” includes “any person who heals or exerts a healing influence.” Bingo and ergo. Exerting a healing influence is something a physical therapist does, therefore a physical therapist is a physician. Of course, so is Barney, by that standard.

Should the Legislature not have been more precise when it created the PIP system? Not at all, said the Court, quoting dicta from a 1978 decision: “In so large a legislative enterprise… there are likely to be casual overstatements and understatements, half-answers and gaps in the statutory provisions.”

The bigger and more complicated the law, in other words, the greater the degree of carelessness we should expect from lawmakers. Ask them to enact a law establishing the official state folk dance, and they will do themselves proud. But give them something as complex as, say, health care and insurance, and they will inevitably descend to a level of slap-dashery that would embarrass even the drafters of the ACA. What a dismally low standard for the judicial branch to apply to the legislative branch.

Should the law require a PIP applicant to submit to examination by a medical doctor, dentist, or physical therapist of the insurance company’s choosing? Perhaps. But does it? Not as currently written. Rewriting the statute so that it does is a task for the Legislature alone, not for the courts.

PV for cropping bandw

Peter Vickery, Esq.

 

Wait! No! Don’t hit delete yet…

August 28, 2014

petervickery

Wait! No! Don’t hit delete yet….

Storm Team 7: Latest storm assessment news from the SJC

April 14, 2014

petervickery

April 14, 2014:- An unsettling decision emerged from the Massachusetts Supreme Judicial Court (SJC) today. For readers who prefer executive agencies to stick to executing the law rather than making fundamental policy, the decision will come as rather a disappointment. The case involved the question of regulatory takings and its name is Fitchburg Gas & Electric Company v. Department of Public Utilities, No. SJC-11397. In this decision the seven justices of the SJC interpreted a statute one way, and then granted the enforcing agency the right to interpret the same statute in exactly the opposite manner. Appropriately, the statute in question had its origins in the confusion and finger-pointing that followed a natural disaster.cloud

After the storms of 2011, the consensus among state lawmakers was that the response of the utilities had been somewhat desultory.  So in 2012 the Massachusetts Legislature enacted a statute establishing the Storm Trust Fund to help the Department of Public Utilities (DPU) examine the power companies’ storm preparedness. The law required all electric utilities to pay for the Fund via an annual assessment.

But, readers may wonder, as rational economic actors with a duty to their shareholders, would not the utilities simply pass on the cost of the assessment to the consumers? Ah, the Legislature thought of that. In order to prevent that very outcome it crafted section 18, para. 3, prohibiting the utilities from seeking “recovery of any assessments in any rate proceeding before the department.” Five electric companies sued on the basis that, among other things, the law amounted to a regulatory taking. The result was today’s decision from the SJC upholding the law.

A quick reminder: Did the Legislature intend to give the utility companies leeway to pass the cost of the assessment on the consumers? No, because (as the court explained) the Legislature’s intent was to raise funds to “investigate public utilities’ storm preparedness and responsiveness” and require the companies to “absorb the costs associated with achieving these purposes.” So the DPU must prohibit the utilities from effectively recouping that cost, correct? No. The DPU can interpret the statute in a way that permits the utilities to do exactly that.

Yes, you read that correctly.

Here is how the court summarized its decision: “[T]he Legislature may… prohibit the companies from including the assessment as a direct cost in a rate proceeding… However, even when such an assessment is properly excluded from the rate base, the department must permit the utilities to achieve a fair and reasonable rate of return on their investment, in accord with our constitutional mandates… What constitutes a reasonable return is a fact-specific inquiry that must be made in the context of a particular rate proceeding.”

The court held that although the DPU could interpret the statute to prevent a utility from claiming the assessment as part of its rate base, the DPU could — on the other hand — “offset the impact of the assessment through the allowance of a higher rate of return.” In footnote 4 the court observed, “It appears that the [DPU]… has not settled on an interpretation of the statutory language.”

Because the industry is such a highly regulated one the case is, in some respects, quite complex. But in one regard it is reasonably clear: An executive agency may interpret a statute in a way that contradicts what the SJC has determined to have been the clear intent of Legislature in enacting it. If you can call that reasonably clear.

 

The meaning of “the”

January 13, 2014

petervickery

Does “the” mean “the,” or does “the” mean “a”? theThat is the essence of the key question before the Supreme Court of the United States, which will hear oral arguments today in National Labor Relations Board v. Noel Canning. Ten years ago, when President George W. Bush was in office, the late Senator Ted Kennedy argued that “the” means the definite article. Today counsel for President Obama’s NLRB will say that it does not.  As Senator Kennedy’s brief makes clear, this is not an inherently partisan question, and the meaning of “the” should not depend on which party controls the White House.

At issue is the President’s authority to appoint government officials without the advice and consent of the Senate. As a default rule, the Constitution requires Senate approval for these appointments, but provides an exception:  “The President shall have power to fill up vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” U.S. Const. art. II, S.2., cl. 3.

When can the President exercise this power?  In other words, what is “the recess”? Can any break within a Senate session qualify, or does the phrase only apply to the recess that occurs between sessions?

Ted_Kennedy,_official_photo_portrait_crop

Senator Ted Kennedy

In 2004, Senator Kennedy argued that President Bush’s appointment of a judge was invalid because it happened during a 10-day break after the Senate had reconvened in January 2004 for its second session.  A break within a session does not create an opportunity to exploit the Recess Clause, Kennedy argued. “An intrasession adjournment is not ‘the Recess’ to which the Recess Clause refers.” (Kennedy Amicus Brief, p. 4).

The issue arose again after President Obama made appointments to the NLRB without the Senate’s consent.  The Senate was not between sessions at the time, and was holding pro forma sessions of the sort that it used in 2007 for the express purpose of preventing President Bush from making any more recess appointments.  President Bush appears to have agreed that these pro forma sessions had the effect of keeping the Senate in session and not in recess.  At any rate, he made no further purported “recess” appointments.

The alleged “recess” that President Obama used in January 2012 – like President Bush in 2004 – was within a session of the Senate (an intrasession recess as opposed to an intersession recess). This was precisely the kind of appointment that Senator Kennedy’s brief denounced as unconstitutional.

Back in 2004 the Court of Appeals for the Eleventh Circuit rejected Senator Kennedy’s argument and ruled in favor of President Bush. It held that the “Senate’s break fits the definition of ‘recess’ in use when the Constitution was ratified.” Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004).  In contrast, the Court of Appeals for the D.C. Circuit held that “the recess” does not mean just any break in proceedings, but rather is confined to the gap between sessions.

The lower courts are divided.  Now it is up to the Supreme Court to decide which argument is correct: Senator Kennedy’s or President Obama’s.

Update: June 26, 2014: The Supreme Court of the United States held that the Senate is in session whenever it says that it is, so long as it has the capacity to transact Senate business.

Gas in Mass.? Not so fast.

November 8, 2013

petervickery

In October I gave a talk on the law surrounding hydraulic fracturing (fracking) and shared the stage with Professor Steven Petsch, a geologist who teaches at the University of Massachusetts, Amherst. oct 9 mtg 1 You can watch both presentations by clicking here. Mine starts around the 46-minute mark, by the way.

My presentation focused on the current regulatory ban on Class II wells and the question of whether it could withstand a courtroom challenge. Professor Petsch described the geology of the Pioneer Valley and made absolutely clear that nobody has discovered natural gas in the area. He also explained why: The history of the rock formations in Western and Central Massachusetts make it extremely unlikely that they contain recoverable natural gas.

About a year ago the Massachusetts State Geologist posted a helpful overview online, which you can read here. Like Professor Petsch, the State Geologist makes abundantly clear that nobody has discovered natural gas in Massachusetts.

Nevertheless an organization called Environment Massachusetts keeps claiming that gas deposits have been found here. The people who work for Environment Massachusetts may be right about a lot of things, but on this they are just wrong. So please remember, if a canvasser from Environment Massachusetts asks you for a contribution because (as their website alleges) “geologists recently discovered shale gas in Western Massachusetts,” you may decline with a perfectly clear conscience.

Can you hear the silence? The SJC can.

August 28, 2013

petervickery

Do you remember that day in high school or college when you learned about the separation of powers? Today the Massachusetts Supreme Judicial Court issued a decision that contains some language which might leave you wondering whether, during the intervening years, somebody went and amended the Constitution.

The case is Massachusetts Teachers’ Retirement System v. Contributory Retirement Appeal Board and it is important for several reasons. This post deals with just one of those reasons, one that matters to anyone who might be affected by how much leeway a government agency has when it interprets a statute.

First some background.  In 2005 the Legislature passed a law allowing vocational education teachers to increase their pensions by having up to three years of non-teaching employment count toward their “creditable service.”  During that three-year period they must have been working in the same trade they ended up teaching, e.g. a plumber who becomes a vocational plumbing teacher can ask the retirement board to count three years of her pre-teaching plumbing when calculating her pension.

To qualify for this significant pension boost, teachers have to contribute “makeup payments” into the retirement system, in an amount equal to ten per cent of their regular annual compensation. They also have to pay “buyback interest.” But when should the interest accrue: when they entered the retirement system, or the start of the three-year period?

In answering that question, two agencies had competing interpretations of the statute. One agency, the Contributory Retirement Appeals Board (CRAB) said that the statute was clear and unambiguous. Interest should run from when the teacher joined the system. The other agency, the Massachusetts Teachers’ Retirement System (MTRS) disagreed, saying that the statute was silent on the issue.  The Supreme Judicial Court heard the same silence, and held that the way the MTRS filled the silence was reasonable and entitled to deference.

Can you hear the silence?

One topic for a future post is the question of how silent the statute really is. In the meantime, I would like to address a more basic, constitutional aspect of the case.

What the Court said in explaining its decision is worth noting, not only if issues like democratic accountability rank high on your list of priorities, but also if you think that at some point your life may be affected by how an executive agency interprets a piece of legislation.

By way of a prelude to the Court’s explanation, let me refresh your memory of that high school or college lesson. The Constitution of the United States embodies the doctrine of the separation of powers, allocating the executive, legislative, and judicial roles to three distinct branches.  The Massachusetts Constitution, which predates it, is more explicit. Article 30 states:

“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

Because the Constitution prohibits the Legislature from delegating is lawmaking powers to the executive, courts and commentators refer to the “doctrine of non-delegation.” Of course, Massachusetts judges have long recognized that modern government requires some degree of delegation, but they have distinguished between situations where agencies are just “working out the details” of a policy that the Legislature has announced (which is permissible) and those where the agency is making “fundamental policy” (which is not).

If the Legislature has delegated to an agency the task of making “fundamental policy decisions” it has violated Article 30. That was a point the Court made very clear in 2006 when it decided Commonwealth v. Clemmey.  But in today’s decision, which did not mention the non-delegation doctrine, the Court said this:

“[T]he Legislature simply chose to be silent on the issue, thereby leaving a policy gap to be filled by agency action.”

So this is a policy question, without doubt, not merely a matter of “working out the details.”  Is the question of when interest accrues on a vocational teacher’s buyback a “fundamental policy question” or is it something less than that, e.g. a trifling or minor policy question?  This recent report on the commonwealth’s unfunded pensions liabilities may influence how you answer that question.  It mentions a figure of $23.6 billion.

One important lesson from today’s decision is this: It has become even easier for the Legislature to delegate policy questions to executive agencies, when even an issue that involves a multi-billion dollar unfunded mandate does not qualify as a “fundamental policy decision” of the sort that the Legislature has no constitutional right to delegate.  If you have any questions or comments about the decision, I welcome your posts.

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