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.

Peter Vickery, Esq. 413 549 9933

Magna Carta: Why should we care?

Law Day Remarks, May 1, 2015, Old County Courthouse, Northampton, Massachusetts

Eight hundred years ago at Runnymede in England, King John agreed to a document that came to be known as the Great Charter (in Latin, Magna Carta). Should we care, 800 years later? I argue that we should care, that we should consider Magna Carta’s provisions the “title deeds of freedom,” as Winston Churchill called them, and value them accordingly. To help make my case I offer two exhibits: stanza and a seal.  I’ll start with the stanza:

At Runnymede, at Runnymede,

Your rights were won at Runnymede!

No freeman shall be fined or bound,

Or dispossessed of freehold ground,

Except by lawful judgment found

And passed upon him by his peers.

Forget not, after all these years,

The Charter signed at Runnymede.

Rudyard Kipling wrote those words – a stanza from his poem What Say The Reeds of Runnymede – in the early Twentieth Century for schoolchildren across the British Empire. We are not in the early Twentieth Century, and even though some of us here this morning are still in school we are none of us in the British Empire. So why should we “forget not after all these years the Charter signed at Runnymede”?  Because the process by which this country emerged from the British Empire – the very decision to become a separate, independent country – had something to do with Magna Carta.

Don’t take my word for it. Take the words of the people who brought about our independence. In the summer of 1775, after Lexington and Concord, the members of the provisional Massachusetts government, called the Council, voted to adopt a seal. They wanted to represent visually their principles and their mission. As the seal of this ex-colony they chose “an English American holding a sword in the right hand and Magna Charta in the left with the words Magna Charta imprinted on it.”

Massachusetts seal 1775
Massachusetts Seal, 1775

Let us think about the significance of that choice. The seal of our Commonwealth, the one that our predecessors designed at the beginning of the Revolutionary War, featured “an English American” holding a sword in one hand and, in the other hand, Magna Carta.

If anyone asked them what they were fighting for, the Patriots had a ready answer: What are we fighting for? Magna Carta.

That seal tells us that these Patriots thought of Magna Carta’s provisions as the “title deeds of freedom.”  They were demanding a set of rights first described at Runnymede in 1215, reissued in the Middle Ages, and brought up again in the 1600s when the King tried to raise taxes without Parliament, ignoring and bypassing Parliament.

When Parliament would not provide him with taxes, King Charles I tried to raise money by other means, namely forced loans. If you were a landowner and refused to lend him the money, the King would put you in prison. Without the trouble of a jury trial, he could put you in jail. Some people opposed this practice. What was the legal basis for their opposition? Magna Carta.

Not Magna Carta as some vague ancient idea, but rather some specific clauses of Magna Carta. For example the 14th clause, which provided: “To obtain the general consent of the realm for the assessment of an aid… or a scutage [forms of taxation], we will cause the archbishops, bishops, abbots, earls, and greater barons to be summoned individually by letter.”

In plain English? To levy a tax the King will obtain the consent of the realm through an assembly of the major landowners. Or more simply, no taxation without representation.

The 28th clause of Magna Carta stated: “No constable or other royal official shall take corn or other movable goods from any man without immediate payment, unless the seller voluntarily offers postponement of this.”

In plain English? No taking without just compensation.

These are not airy, abstract ideas. They are certain, particular rights of the individual. In the 1600s Parliament had to defend them against the king. In the Petition of Right 1628, drafted by Sir Edward Coke, Parliament said:

“[B]y the statute called ‘The Great Charter of the Liberties of England,’ it is declared and enacted, that no freeman may be taken or imprisoned or be disseized of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land.”

Coke was quoting from the 39th clause of Magna Carta:

“No freeman shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”

The law of the land. Not the caprice of the king.

That tax dispute culminated in a war, the English Civil War of the 1640s, a war between Parliament and the King. When war broke out, some Puritans left Massachusetts for England, to go fight for Parliament, for the principle that sovereignty vests not any particular king but in the law. They took up arms to defend the sovereignty of the law. What law? The law of the land.

Later in the 1600s, after the English Civil War, the dispute blew up again, this time because the King was (again) raising and spending money without the consent of Parliament. Parliament was also vexed that the King had started the practice of dispensing and suspending: dispensing with some laws, suspending other laws and their execution, without consent of Parliament. In other words, picking and choosing, rewriting some acts of Parliament and completely ignoring others.

So in 1688 Parliament sent one King on his way and brought in substitutes in what became known as the Glorious Revolution. Parliament then passed the Declaration of Rights, later called the Bill of Rights, which restated “certain ancient rights and liberties.”

In what sense was this Glorious Revolution a revolution? When the King purported to suspend laws and rewrite them, he was turning the constitution on its head, upside down. To restore the old constitution (to turn things the right way up) Parliament rotated or revolved.

But after the Glorious Revolution, a new doctrine took hold in England: Parliamentary supremacy, the idea that Parliament was supreme or sovereign and could pass any law it wanted. One example of a statute that embodied this novel idea was the Declaratory Act of 1766, which asserted the right of Parliament to legislate “in all cases whatsoever.” No exceptions.

Over here, that doctrine didn’t really take. Our predecessors in Massachusetts held fast to the older doctrine that no government could uproot the law of the land. They adhered to the ideas described in the Petition of Right back in 1628 by Sir Edward Coke, the idea that kings are not sovereign, legislatures are not sovereign; kings and legislators lack constitutional authority to take away certain rights and liberties.

The Patriots of Massachusetts were familiar with Coke. Coke was, among his many accomplishments, author of the Institutes of the Laws of England. It was the go-to reference book for colonial attorneys like James Otis and John Adams.

Like Coke, our predecessors – Otis, Adams, and company – saw Magna Carta as more than a symbol or an icon. They saw it as a practical legal document: an enduring, enforceable law; something fundamental, reflecting rights that are inherent, not the gift of any government. The inherent rights, or birthright, of Englishmen.

How could the people of Massachusetts – the politically vocal, enfranchised ones, at least – claim to enjoy the rights of Englishmen? Because they were English Americans and saw themselves as such. Recall the seal of 1775: “an English American,” in the words of the provisional government, with a sword in one hand and in the other Magna Carta.

So to them, this new notion of Parliamentary supremacy or sovereignty, was unacceptable. When the English in England passed the Declaratory Act in 1766, the English in America perceived it as a renunciation and betrayal of Magna Carta. The subsequent American Revolution was a revolution in the same sense that the Glorious Revolution was a revolution. Revolving the relationship between government and governed, turning what had been upside-down right-side up.


If ever you find yourself in English countryside, take a look in the nearest village church. You have a good chance of finding a stone monument of some kind – an effigy or at least a plaque – commemorating an old knight of the shire, maybe even one of those barons who forced King John to come to terms at Runnymede. If you read the words carved into the stone, you may well see the Latin inscription, “Magna Carta Est Lex, Deinde Caveat Rex,” meaning “Magna Carta is the law, let the King look out!”

Look for that expression on old tombs. But don’t bother searching for those words, or for Magna Carta itself, in the statute books. Over the course of the 19th and 20th Centuries, Parliament whittled away at Magna Carta, repealing clause after clause. What the British people – even those who never read their Kipling or their Churchill – once considered fundamental, a legal backbone or heart and soul, no longer has the force of law. Today in modern Britain, the only law that judges deem so fundamental that they will strike down legislation they deem incompatible with it is the European Communities Act of 1972, which binds Britain to the European Union and makes European law supreme.

Eight hundred years after Runnymede, the Britain of today is a cautionary tale, so I conclude with a warning. The rights that Magna Carta describes are fragile. They are not safe and secure.  If they were, there would have been no need for the Petition of Right, no need for the English Civil War, no need for the Glorious Revolution, and no need for the American Revolution: no need for the fellow in the seal to be holding a sword. If they were, in England Magna Carta would still embody the law of the land, not serve as a mere museum piece, a relic.

To conclude, here is the whole of Kipling’s poem What Say the Reeds at Runnymede, a poem that was once stirring but is now more poignant. The conceit is that the reeds in Runnymede marsh remember the rights embodied in Magna Carta and if those rights come under threat, the reeds will stir, and tell the great River Thames that rolls through London past the Houses of Parliament, and the Thames will warn those in power, in effect, “don’t mess with England.”

At Runnymede, at Runnymede,

What say the reeds at Runnymede?

The lissom reeds that give and take,

That bend so far, but never break,

They keep the sleepy Thames awake

With tales of John at Runnymede.

At Runnymede, at Runnymede,

Oh, hear the reeds at Runnymede:

“You mustn’t sell, delay, deny,

A freeman’s right or liberty.

It wakes the stubborn Englishry,

We saw ’em roused at Runnymede!

When through our ranks the Barons came,

With little thought of praise or blame,

But resolute to play the game,

They lumbered up to Runnymede;

And there they launched in solid line

The first attack on Right Divine,

The curt uncompromising “Sign!”

They settled John at Runnymede.

At Runnymede, at Runnymede,

Your rights were won at Runnymede!

No freeman shall be fined or bound,

Or dispossessed of freehold ground,

Except by lawful judgment found

And passed upon him by his peers.

Forget not, after all these years,

The Charter signed at Runnymede.

And still when mob or Monarch lays

Too rude a hand on English ways,

The whisper wakes, the shudder plays,

Across the reeds at Runnymede.

And Thames, that knows the moods of kings,

And crowds and priests and suchlike things,

Rolls deep and dreadful as he brings

Their warning down from Runnymede.

Newsflash: People are allowed to sue insurance companies

This case should interest students of Legislative Drafting and anyone who has ever had the urge to sue an insurance company. It is possible that somewhere (perhaps Antarctica) lives someone (saint or blessed) who falls into neither category.

In 2012 a jury awarded Robert Chiulli damages of more than $4 million for injuries he sustained in a Boston restaurant.  Prior to the trial, the restaurant’s insurance company, Liberty Mutual, did not offer to settle. So after winning his lawsuit, Mr. Chiulli sued Liberty Mutual under Chapter 176D, the Massachusetts law that requires insurance companies to make a reasonable offer when liability has become reasonably clear. The Appeals Court has just decided that his case can go forward, despite a novel and imaginative argument from the insurance company’s lawyers, which went as follows:

Letting Mr. Chiulli sue Liberty Mutual would violate the anti-SLAPP statute because the company’s decision to opt for trial rather than settle constituted a “petitioning activity.”

To the lawyer who came up with that one, I tip my hat in salute. The Appeals Court expressed no such admiration for the argument, however, and held that accepting it would “effectively gut c. 176D.”

The abbreviation “SLAPP” stands for Strategic Lawsuits Against Public Participation. The “anti” speaks for itself. Strategic lawsuits against public participation are lawsuits that the Legislature enacted the anti-SLAPP statute to prevent. At the heart of the law lies the notion that people in a self-governing republic should be free to engage in petitioning activities, such as lobbying and voicing opinions at public meetings, without fear of their opponents using the legal system to silence them.  So it was a stretch (albeit an admirable one, in my opinion) to turn to the anti-SLAPP statute as a means for an insurance company to fend off a Chapter 176D action.

For any past or future Legislative Drafting students of mine, the rule of statutory construction worthy of your attention appears on page 14 of the decision. It has to do with the timing of the enactment of the anti-SLAPP statute in relation to Chapter 176D. First came Chapter 176D in 1972. Then, 22 years later in 1994, came the anti-SLAPP statute. Does the fact that the Legislature enacted the anti-SLAPP statute after Chapter 176D mean that it intended to undo Chapter 176D? No, said the Appeals Court, quoting from a 2010 decision by the Supreme Judicial Court:

“When construing two or more statutes together, we are loath to find that a prior statute has been superseded in whole or in part in the absence of express words to that effect or of clear implication.”

So a newer statute does not supersede an older old one unless the Legislature says so expressly or by implication. Most of the time, anyway (note the phrase “we are loath to” as opposed to “we will never, ever, under any circumstances”). One option for drafters who wish for greater clarity and certainty is to include a clause similar to that which appears in section 1-105 of the Massachusetts Uniform Probate Code. If you’re into this sort of thing, or somewhat curious, just click the link.

Mr. Chiulli’s case against Liberty Mutual is not over, but it has survived the anti-SLAPP guillotine.

Justin Sargent 1

HRC CC’ing the PRC, etc.

Justin Sargent 1
Peter Vickery, Esq.

A short post on the Legal Solutions Blog looks on the bright side of Hillary Rodham Clinton’s decision to use a less-than-secure, non-official server and e-mail account for official communications while Secretary of State (including correspondence with the President), a practice former White House spokesman Ari Fleischer calls tantamount to cc’ing China, Russia, and Iran. The authors see it as a teachable moment for employers. Definitely worth a read.

Doctoring the definition

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.


Norman Conquest

They’ve done it again. The justices of the Supreme Judicial Court have construed a statute by referring to the intent of a single legislator, not the legislature as a whole. It is almost as if they did not read my blog post on the subject.

Today the Court published its decision in Bay Colony Railroad Corp. v. Yarmouth, explaining that in 1994 Congress must have intended to preempt the state regulation of rail transportation of waste to a waste-to-energy facility because then-Congressman Norman Mineta said so (pp. 11-12).

Accordingly, I have whited-out the old version of Article 1, Section 1, in my copy of the Constitution of the United States and revised it to read: “All legislative powers herein granted shall be vested in Norman Y. Mineta.”

Peter Vickery, Esq.
Peter Vickery, Esq.

Will Massachusetts Ban Employers from Googling?

In my online column for Business West last month, I wondered whether Massachusetts lawmakers might enact a law in 2015 that would prohibit employers from perusing a job applicant’s online writings unless those writings are in the public domain (i.e. not subject to copyright). If the proposed bill became law an employer could not lawfully look at an applicant’s blog without the applicant’s express prior permission.  To find out why this is even a possibility, scroll down to the third item, titled “State Level Developments.”

With the next session of the Legislature poised for kick-off, it is time to do more than wonder. After reviewing the newly-filed bills I shall post an update, so stay tuned.

If you are curious about when, if ever, a social-media diatribe can serve as the basis for terminating employment, you might want to read the rest of the article.

Justin Sargent 1
Peter Vickery, Esq.


Who owns the copyright?

“Who owns the copyright?” That is a question I hear quite often, from employers, employees, and independent contractors alike. The short answer is “it depends,” and the slightly longer answer is spelled out in this post on the Legal Solutions blog, which contains a handy graphic.

Peter Vickery, Esq.

Why lawmakers won’t help Gov. Patrick abolish non-competes

Massachusetts Governor Deval Patrick wants to abolish non-compete agreements. Would you like to find out why, and why the Legislature has (so far) said no?  Just click here for my latest article in Business West.

in office with logo
Peter Vickery, Esq.

Don’t speak

To put flesh on the bones of the latest Massachusetts campaign-finance statute, the Office of Campaign and Political Finance (OCPF) has drafted some new regulations, which are available for your viewing pleasure here.

Among the proposed changes, a new rule for organizations that make independent expenditures.   Here is what it says:

“If an organization makes a contribution, electioneering communication, or independent expenditure from its general treasury that is not fully paid from general organizational income, it must organize a political committee and identify additional donors to the extent that general treasury funds and those contributors described in 970 CMR 1.22(6)* did not provide the full balance of the funds used to make the contribution, electioneering communication, or independent expenditure.” 970 CMR 1.22(8).

First, can you really “make an electioneering communication… from [your] general treasury”?  Certainly you can pay for one; but can you make one? Probably not, unless your organization’s general treasury is a crafts box replete with markers, Elmers Glue, and scissors.

Second, what is an organization’s “general organizational income,” as opposed to its “general treasury”?  The proposed regulation implies that the former is something that ends up in the latter, but neither the regulation nor its authorizing statute defines the term “general organizational income.”

Third and final question: Why should you care? This one I can answer. You should care because failure to comply with the regulations would have serious consequences.

Let’s say your non-profit spends $500 on a newspaper advertisement urging readers to vote “yes” on a certain statewide ballot question that would have a direct impact on the non-profit’s constituency. You do not set up a separate political committee or file any reports with OCPF listing all the donors who have given the organization more than $250 over the last year. After all, not all your donors want the world to know they support your organization. And so long as the organization pays for the ad out of its general treasury fund, you do not need to go through all that palaver, right?

On that reasonable basis, your treasurer just writes a check to the newspaper, drawn on the general treasury account, and the newspaper runs the ad.

Not everyone feels the same way about the ballot question, and an opponent informs OCPF of your ad. Remember, you did not organize a political committee or file any reports with OCPF identifying your organization’s supporters. Should you have? Yes, alleges the opponent, because he’s heard that a couple of your donors made contributions for the specific purpose of funding the newspaper ad. True, the donors did not indicate that intent on memo line of their checks, and your treasurer deposited the donations into the general fund, but these donors knew the organization planned on buying the ad and they wanted to help.

So, alleges your opponent, although the check was drawn on your general treasury fund, not all the money for the ad came from your “general organizational income.” You should have organized a political committee and provided OCPF (and anyone who cares to peruse the agency’s website) with your donor list.

OCPF is inclined to agree with your opponent. This could lead to the agency — after giving you 10 days to respond  — passing your name along to the Attorney General who may then ask the District Attorney to commence criminal proceedings against you.

Will you and the board of directors really end up in jail because of one little newspaper ad? Not likely. But in the future, when you think about sharing your organization’s political opinion in a manner that has proven effective, will your mind turn to the possibility of a protracted entanglement with OCPF, conversations with lawyers from the Office of the Attorney General, maybe having to hire your own lawyer, and the negative publicity and consequent decline in donations? Will these thoughts, perhaps, dissuade you from speaking out?

To deter an activity, make the applicable regulations unclear and the price of non-compliance high. When the regulations affect political speech, this is called the chilling effect.

OCPF invites public comment on its proposed regulations, due no later than 10:00 a.m., Monday, September 22, 2014. Click here for the OCPF website where you can find out how to submit your opinion.

* This means a donor of $250+ who knows** that the organization will use her/his payment to pay for an electioneering communication or to make a contribution to, or an independent expenditure to support/oppose, a Massachusetts candidate or ballot question.

** As you might expect, the word “knows” encompasses more than actual knowledge. Under 970 CMR 1.22(6) OCPF may deem a donor to “know” if the “circumstances, including the timing and context of the donations, indicate that a donor knew that the payment would be used for such purpose.”

Peter Vickery, Esq.

To the quipster go the spoils

Today’s Supreme Judicial Court decision in Massachusetts Electric Company v. Dept. of Public Utilities caught my eye not so much for its conclusion as for its citation to one particular source as authority, namely State House News. This seems to be somewhat of a trend, and not one that I welcome.

One issue in the case was the standard that the Department of Public Utilities (DPU) used in deciding whether three electricity providers had restored power promptly enough after the 2011 storms. In 2009 the Legislature enacted a statute that gave the DPU power to levy fines against companies that fell short of its “standards for acceptable performance emergency preparation and restoration of service.” The companies argued that the DPU should have applied the prudence standard, i.e. did their performance conform to “fair and prevailing utility practice,” rather than a mere reasonableness standard.

The SJC disagreed, pointing to the fact that if the Legislature had intended to establish a prudence standard it would have done so (“the Legislature is familiar with the prudence standard and knows how to direct the department to apply it in the regulation of public utilities”). But then, to bolster the point with legislative history, the Court went on to quote comments that State House News had included in its reports of the debate in the House of Representatives. One of the statements was from Representative Robert Rice, who said, according to State House News, that the bill would “put a knife over the heads of the utilities” and give the DPU “the muscle and teeth that was previously lacking.”

Lurid language of this caliber has a way of making it into news stories; that is one reason why politicians employ it. If you have ever been in politics you will know that memorable and quotable phrases help maintain your public profile and increase your chances of reelection. There is absolutely nothing wrong with striving for eloquence, or even just the occasional bon mot that will look good in ink. After all, persuading colleagues to support your bill and the qualified and registered residents of your district to vote for you is part of your job. But when judges use your quips to help discern the meaning of statutes, greater glory beckons, and herein lies an unfortunate incentive.

Construing an ambiguous statute entails divining the intent of the Legislature, and most judges (or rather all judges, I hope) would agree that the place to start is the statute itself. If other statutes use the same word or phrase, or if there are binding precedents in which appellate courts have construed it consistently, there is little danger that the judge will misunderstand the intent of the Legislature. But If the judge proceeds to look to extraneous sources for meaning, such as the words of individual legislators, as reported in the press, we face the risk that politicians will engage in “legislation by soundbite.”

Quoting politicians in judicial decisions encourages them to make misleading statements (as if they needed any encouragement) regarding the meaning of a given piece of legislation or a phrase therein. If your preferred definition fails to make it into the final version of the bill that both chambers enact and present to the Governor for signature, you are still in with a shot of influencing how the courts will construe it: Simply read a pithy phrase on the floor of the House in the hope that it will end up in the news.

Temptation of this nature is hard to resist, and who could fault a doughty advocate for succumbing to it. But that does not alter the fact that there are only two ways to legislate in Massachusetts: the ballot initiative and the Legislature. Under our Constitution legislating via the Great and General Court involves passage through the House and Senate followed by gubernatorial signature (or veto and override). Nowhere does the Constitution grant special privileges to the legislator with the catchiest quip.

Peter Vickery, Esq.

Wait! No! Don’t hit delete yet…

Have you ever defamed somebody on Facebook? I have just learned an important piece of information about what to do when you receive the sternly-worded demand letter from the defamed person’s attorney.

When I get defamation cases my clients tend to be the libelees, individuals on the receiving end of libellous statements, but if I ever end up representing a libeler I will be grateful for having read this short article by Jeremy Byellin, an attorney who blogs for Thomson Reuters. I recommend clicking the link and taking a look.

Bottom line: Before you delete the offending matter, save it somehow. Otherwise if the case goes to trial, your decision to delete could actually work against you.