November 19, 2019:- When the Massachusetts Commission Against Discrimination (MCAD) stopped producing documents in response to Attorney J. Whitfield Larrabee’s public records requests, Attorney Larrabee sued. The MCAD said that it had changed its policy, and that from now on it would only produce information about closed cases, not open ones. Today the Appeals Court held that it is duly promulgated regulations that govern, not a unilateral policy adopted without notice and comment.
Justice Sullivan’s opinion states that the agency’s new policy conflicts with its regulations and that it must, in accordance with the regulations, produce the documents. My favorite excerpt is the following:”A regulation controls over policy statements or guidelines that conflict with the regulation… If the MCAD wishes to consider recalibrating its policy regarding public disclosure, it must follow the amendment process.”
In case any of my students are reading this, I point out that this case provides an example of why you should read the footnotes, which are there for reading not decoration. In footnote 7 the court deals with the MCAD’s argument that public disclosure of open cases will lead to respondents retaliating against complainants: The argument does not hold water because Respondents know about the complaint from the outset when the MCAD serves them with it.
Today’s decision makes this a good day for open government and the rule of law.
P.S. November 19, 2019: I just filed my own public records request with the MCAD for pending charges filed so far this year in the commission’s Springfield office. I will keep you posted.
September 19, 2019:- At 12 noon on October 9 in its Springfield office, the Massachusetts Commission Against Discrimination (MCAD) will hold a public hearing on proposed changes to its procedural regulations. For a link to the notice click here.
One proposal in particular caught my eye, as I mentioned in a previous post, and here is the text of the comment I submitted to the MCAD in support of it:
804 CMR 1.13(9)(b)(3)
The proposed rule provides that “where the Commission’s jurisdiction or authority to proceed is challenged by a motion filed with the Commission, the Investigating Commissioner may stay investigation of the merits of the charge pending a ruling on the motion.”
As an attorney who has previously complained about the Commission investigating charges without having adjudicated a motion to dismiss for lack of jurisdiction, I welcome this proposal. A clear and unambiguous grant of discretion to issue a stay would be a significant improvement on the current situation.
However, where a respondent’s motion raises the limitation period I believe that a stay should be mandatory not discretionary. The purpose of a statute of limitation is to provide a degree of certainty and predictability, which purpose is undermined when investigations commence after the statutory deadline has passed. Accordingly, where a motion seeks dismissal based on the expiry of the limitation period, the Commission should only continue to investigate after determining that the period has not expired and the Commission does, in fact, have jurisdiction.
In order to maintain the principle of separation of powers (one of the bulwarks of liberty), agencies should operate within, not beyond, their statutory remit. Conducting an investigation without jurisdiction violates that principle. It should not happen. This proposed regulation goes some way toward preventing the MCAD exceeding its authority, so I hope that it makes the final cut.
I intend to be at the public hearing in Springfield and to post a brief report of what, if anything, occurs. Probably it will not be necessary to arrive hours ahead of time and queue for a seat. After all, on October 9 many Bay Staters will be busy observing the anniversary of the banishment of Roger Williams in 1635 or celebrating Leif Erikson Day. Quite possibly, therefore, there may not be much of a crowd at the mid-week, noontime meeting to discuss amendments to the MCAD’s procedural regulations. But you never know. In the meantime, if readers would like to know more about the issue, please post a comment or email me.
September 16, 2019:- Today the Supreme Judicial Court (SJC) announced a decision that gives landlords cause to rejoice.
Following motion by a landlord, a court has statutory and equitable authority… to order a tenant at sufferance to make interim use and occupancy payments during the pendency of an eviction action.
On behalf of MassLandlords, I submitted an amicus brief in the case, Davis v. Comerford, and my main worry was that the court would set an unrealistic threshold for landlords to meet before a rent-escrow order could issue. That worry was misplaced, I am relieved to say. Instead of following the advice of the Harvard Legal Aid Bureau and requiring landlords to show the threat of “irreparable harm,” (i.e. harm that money cannot fix) the SJC tells judges which factors to take int account and to then engage in an “overall balancing of the equities.”
The first factor?
[T]ime lost in regaining [real property] from a party in illegal possession can represent an irreplaceable loss to the owner.
The other factors in the non-exhaustive list of factors that the judge should weigh are;
Amount of rent owed;
Number of months with no payments/partial payments;
Landlord’s monthly obligations;
Whether landlord faces the threat of foreclosure;
Tenant’s likelihood of success on the merits of defenses/counterclaims;
Whether tenant has been withholding rent because of conditions, or has repaired and deducted cost from rent;
Whether code violations are de minimis or substantial;
Whether tenant is indigent.
In addition to making clear that judges can order rent escrow and not setting an impossibly high bar for landlords, the SJC said this:
We further conclude that payment into an escrow account maintained by the court or counsel for one of the parties typically will provide sufficient protection to a landlord, but we clarify that a judge may order payments directly to a landlord if certain additional factors are present, such as where the landlord demonstrates that use and occupancy payments are necessary for the landlord to pay a mortgage on the premises or meet other pressing financial obligations.
For the slip opinion of the Davis v. Comerford decision click here.
August 29, 2019:- If you like government secrecy and think the legal system would function much better out of the public eye, you are going to love a proposal called “eviction sealing.”
Some Massachusetts lawmakers would like eviction cases sealed so that the public (in particular, landlords) will not be able to know who has been taken to Housing Court. The bills are H. 3566 and S. 824, and if enacted they would move Massachusetts further away from an important constitutional principle, one that Oliver Wendell Holmes, Jr., described more than 100 years ago:
It is desirable that [judicial proceedings] should take place under the public eye… because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.
Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (Holmes, J.). Based on the idea that sunlight is the best disinfectant, as another jurist put it (quoting James Bryce), Massachusetts court records are available for public inspection unless a specific statute, court rule, or order says otherwise. Public access is the default setting. But here is a video of Professor Esme Caramello, clinic director of the Harvard Legal Aid Bureau, explaining to the Poverty Law Clearingouse why summary-process records should be an exception.
In the video Professor Caramello says that “we saw a dramatic increase in barriers to finding new housing once all the Housing Court records went online” and that allowing public access to Housing Court cases “allows landlords to say ‘if ever a person tries to assert their rights, I don’t want to have anything to do with them,’ so it really creates a major access-to-justice problem.”
This is consistent with what Professor Caramello and Annette Duke of the Massachusetts Law Reform Institute wrote in an article titled “The Misuse of MassCourts as a Free Tenant Screening Device,” published in the Fall 2015 edition of the Boston Bar Journal making the case that landlords should not be allowed to know whether a prospective tenant has been party to a case in Housing Court.
Blacklisting tenants like these merely because their names are online in MassCourts erects unfair barriers to finding an apartment for anyone who has ever been to court in a housing case – tens of thousands of people every year – and could place especially vulnerable people with limited housing options into a spiral towards homelessness.
Another scholar, Paula A. Franzese, makes a similar point in a law review article titled “A Place to Call Home: Tenant Blacklisting and the Denial of Opportunity,” 45 Fordham Urban Law Journal 661 (April 2018):
Blacklists stigmatize, precluding future renting opportunities and rendering affordable housing options even less accessible. What is more, the lists skew market efficiencies, creating “false negatives” of prospective renters who would in fact be fine tenants. The very specter of being blacklisted can impose a considerable chilling effect, dissuading tenants from exercising otherwise assured rights and remedies.
These are strong arguments against landlords making decisions based solely on Housing Court records. A rental-property owner who declines to rent to applicants because their names appear in the Housing Court records could be missing out on great tenants. Rental property owners do not want to miss out on great tenants because (as tenants’ advocates seem to forget occasionally) owners are in the business of renting homes to people, not rejecting and evicting them.
But, appealing as their equity-based arguments may be, Professors Caramello and Franzese do not explain why a tenant’s interest in secrecy should outweigh the public’s interest in access to information, which is a right protected by the First Amendment, according to the First Circuit Court of Appeals. The professors’ solution is not narrowly tailored to serve a compelling government interest, which is the test courts use in deciding whether the government is justified in restricting rights guaranteed by the First Amendment. A blanket ban is quite the opposite of narrow tailoring, really.
Nor do they address the likely consequences of hiding this information from landlords. If landlords are not allowed to manage risk by deciding how much weight to give Housing Court records (because the Legislature has clawed the records back from the public domain) they will insure against the unknown risk in the obvious way: by raising rents.
The State with the highest homeless population in the nation, California, enacted eviction sealing in 2016. According to this article in the Mercury News the bill’s sponsor called it “a commonsense law… that will prevent working families from becoming homeless.” This article from the Wall Street Journal and this one in the Sacramento Bee tell us just how accurate that prediction turned out to be. True, homelessness in California as a whole did drop by 1% in 2017-18 — after years of going upward — as CNN reported. But as NPR, Curbed, and the Guardian pointed out 2019 is another story, with homelessness in Los Angeles (the county with the largest population) rising dramatically this year.
Is there really no way to tackle the eviction-records issue in Massachusetts short of stripping the public of a First Amendment right, becoming more like California, and raising rents?
Last month in the State House I testified against eviction-sealing on behalf of MassLandlords. The proposal is just one among a cluster of landlord-tenant bills pending before the Legislature, e.g. the return of rent control, providing tenants with publicly-funded lawyers, prohibiting evictions without “just cause,” and creating a tenants’ right of first refusal.
For details of my testimony, please stay tuned for the September edition of the MassLandlords newsletter.
March 5, 2019:- Amherst attorneys Paul Bobrowski and Peter Vickery are pleased to announce the formation of Bobrowski & Vickery, LLC, which will focus on civil litigation, employment law, land-use law, landlord-tenant, general business law, and estate planning.
Bobrowski is a graduate of the University of Massachusetts, Amherst, where he obtained his BS (Astronomy) and MA (Sociology), and of the University of San Francisco where he obtained his JD. In addition to practicing law, he served for 11 years as Senior Consultant at the Information Technology Division of the Judicial Branch for the State of Connecticut.
Vickery is a graduate of Oxford University (BA); the University of the West of England (Postgraduate Diploma in Law); Boston University School of Law (JD); and the University of Massachusetts, Amherst (Master of Public Policy & Administration). Vickery is a former Governor’s Councilor for Western Massachusetts and former member of the State Ballot Law Commission, and is Legislative Affairs Counsel for MassLandlords, the statewide membership organization representing rental-property owners in Massachusetts.
January 15, 2019:- The Massachusetts Commission Against Discrimination (MCAD) has published its draft procedural regulations, and I am happy to report that the draft includes a proposal of mine, or at least a version of it.
Readers may recall that back in 2017 I wrote a bill to cover situations where there is doubt that the MCAD has jurisdiction to investigate a complaint. (New MCAD Bill Filed). If a person accused of discrimination files a motion to dismiss for lack of jurisdiction, the MCAD should rule on that motion first, before launching an investigation. In the meantime, the Investigating Commissioner should stay (i.e. suspend) the investigation.
The new proposed rules give the Investigating Commissioner clear authority to issue a stay.
Generally, investigation of a complaint shall not be not stayed pending the ruling on a motion. However, where the Commission’s jurisdiction or authority to proceed is challenged by a motion filed with the Commission, the Investigating Commissioner may stay investigation of the merits of the charge pending a ruling on the motion.
December 4, 2018:- Leyla Pirnie’s landlord would like her to move out. Why? Because Ms. Pirnie (a graduate student at Harvard University) keeps a firearm in her apartment.
The story has been gaining national attention after it broke in the Washington Free Beacon , and it raises important questions for landlords across Massachusetts. How far can landlords go in limiting their tenants’ exercise of constitutionally-guaranteed rights? For example, does a landlord have the right to prohibit a tenant from exercising her right to free speech in the leased premises? What about the free exercise of religion?
If a tenant has a disability, the landlord may have to make an exception to the property’s no-pets policy so as to accommodate the tenant’s emotional support animal (for my MassLandords article on that subject click here). But is there such a thing as an emotional support gun?
I will be exploring these and other questions in next month’s MassLandlords newsletter. In the meantime, to watch Ms. Pirnie’s interview on Fox News click here.