Court cuts off gas contracts

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

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

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

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

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

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Peter Vickery, Esq.
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No sex please, we’re Bay Staters

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

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

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

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

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

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

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

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

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

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

A. Yes.

Q. What gender is Valery?

A.  I don’t know.

Q. What about Valerie?

A. No idea.

Goodbye woman, goodbye sex. Hello protracted litigation.

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Attorney Peter Vickery

 

 

 

 

 

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Issue more regulations, court tells agency

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

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

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

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

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Peter Vickery, Esq.
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Another campaign finance rule. KA CHING!

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.

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Peter Vickery, Esq.
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I can’t believe he didn’t say that!

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).

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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.

“Will case tip the scales?” asks Mass Lawyers Weekly

Perhaps “minefield” is over-used as a metaphor, but ask almost any landlord or attorney who has done a tour of duty in Housing Court and you will hear a war story about security deposits. It is an area where you need a map to make it across in one economic piece, and a single false step can trigger an explosion of damages.

Landlords who take tenants to court for non-payment of rent can expect counterclaims with the prospect of treble damages and attorney’s fees if they, the landlords, have ever failed to observe the least punctilio of the the security-deposit law. That much is certain. But if a landlord makes a mistake with a security deposit, does that give the tenant not simply a counterclaim but also a defense against the landlord’s claim for possession? We shall find out soon enough.

The new edition of Massachusetts Lawyers Weekly has a story about the case of Garth v. Meikle in which the Supreme Judicial Court will provide an answer.  I wrote the amicus brief for Mass Landlords (link here). Oral arguments are scheduled for November 5.

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Peter Vickery, Esq.

Exploding house case: To dig safely, define accurately

In November 2010, while digging up a street to repair water and sewer pipes in Boston’s Hyde Park neighborhood, DeFelice Corporation damaged a gas line. The resulting explosion destroyed a single family home on Danny Road. Today the Appeals Court upheld the decision of the Department of Public Utilities (DPU) to fine the company for violating the Dig Safe law, chapter 82, sections 4040E.

DeFelice had appealed the DPU decision on the basis that it told the Dig Safe call center that it would be digging at “all intersections” around Danny Road. But under the terms of the statute that was not accurate enough, the Appeals Court held. Originally the law required only that an excavator  describe the location “reasonably accurately.” But when the Legislature amended the law in 1998, it deleted the word “reasonably.”  That deletion, reasoned the court, meant that “excavators became legally required to identify excavation locations with precision.”

Students of legislative drafting take note: Sometimes what matters is not the words that the legislature uses, but the words it loses.

Peter Vickery, Esq.
Peter Vickery, Esq.