Invidious discrimination does occur, and we are fortunate to have an agency tailor-made to address it, namely the Massachusetts Commission Against Discrimination (MCAD). But the current four-year backlog of cases at the MCAD is hurting litigants on both sides, employers and employees alike. Justice delayed is justice denied, as the saying goes. And most reasonable people would agree that the MCAD should not handle cases outside its jurisdiction.
So what should we do about the problem? Check out my article in the current edition of the Massachusetts Bar Association’s Lawyers Journal by clicking here.
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.
March 31, 2016:- Yesterday the Supreme Judicial Court issued its decision in Van Liew v. Stansfield, a case I wrote about here involving two Chelmsford politicians. What a relief that the Court ruled that politicians should not use the anti-harassment laws to shut up their critics, and what a disgrace that the question even came up in Massachusetts in the Twenty-first Century.
By way of a reminder: When one politician (Van Liew) referred to the other (Stansfield) as corrupt and a liar, called her uneducated and stupid during a phone conversation, and allegedly said during the course of a meet-and-greet event at the local library “I’m coming after you,” Ms. Stansfield sought a civil harassment-prevention order. The judge not only granted the order, but even prohibited Mr. Van Liew from using Ms. Stansfield’s name online and in print, an order that brings to mind the 1982 Zimbabwean law that forbade jokes about the name of the president, Canaan Banana.
After the election, Mr. Van Liew sued Ms. Stansfield for malicious prosecution and abuse of process, and Ms. Stansfield brought a special motion to dismiss the case under the anti-SLAPP statute. Yesterday’s decision from the Supreme Judicial Court means that Mr. Van Liew’s case can go forward (four years after a judge banned him from uttering his opponent’s name during a political campaign). A welcome vindication of the rights of the citizen, to be sure, but how unfortunate that a candidate for public office would ask a judge for a gag order and how much more unfortunate that a judge would issue one.
Lopsided laws are annoying. But here in Massachusetts we have the right to require that our legislators observe the principles of justice and moderation in formulating our laws. It says so in the Massachusetts Declaration of Rights (article 18, to be precise). So immoderate, unjust laws do more than annoy; they flout some fundamental constitutional principles.
Which prompts me to ask, Why do we put up with the dramatically different burdens that the law places on landlords who hold security deposits vis-à-vis tenants who withhold rent?
If you are a Massachusetts landlord you are free to ask for a security deposit to insure against the tenants damaging your property. But if you do, you had better comply with every jot and tittle of the security-deposit law, M.G.L. c. 186, §15B. The amount of the security deposit must not exceed one month’s rent (not by so much as a dollar), you have to place the deposit it in a separate, interest-bearing account in a Massachusetts bank — not a New Hampshire bank or a Connecticut bank — and give the tenant (1) a detailed receipt within 30 days, and (2) annual statements showing the interest that the deposit has earned. The law goes into great detail about what you must and must not do with the security deposit at the end of the tenancy. Innocent mistakes can prove as costly as deliberate violations. Landlords who are curious about the kind of oversights that could trigger multiple damages and attorney’s fees should watch this short slide-show video by tenants’ lawyer Arthur Hardy-Doubleday, Esq. If pushed for time start watching at the 3:45-minute mark.
In contrast, if you are a Massachusetts tenant and you wish to withhold rent from the landlord (i.e. go on rent strike) the list of legal formalities you have to comply with is considerably shorter. Here is a short video on the subject.
Rent withholding has a reasonable purpose. Tenants are allowed to withhold rent if the conditions in the dwelling are unsanitary, which encourages landlords to make repairs promptly upon request. Fair enough. Mind you, just try that rationale in the realm of workplace relations.
Employer: “Your performance is inadequate.”
Employee: “Are you going to fire me?”
Employer: “No, and you can’t quit either. You have to keep working for us. But we’re going to stop paying you.”
Any employers desiring an insightful predictive analysis of the likely outcome of such an interaction should click here.
If tenants withhold rent, do they have to set the money aside? After all, if — many months, or even years, after the rent strike started — the Housing Court judge decides that the landlord is entitled to some or all of the bank-rent, it could be difficult for the tenants to come up with money. It takes above-average self discipline to save the money rather than spend it on all the other pressing day-to-day demands, especially in a culture that actively discourages thrift (have you looked at interest rates lately?).
But no, the law does not require that tenants place the withheld rent in escrow, so nor do tenants have to provide the landlord with documentary evidence stating the name of the bank and the number of the account.
To recap, landlords holding security deposits have to comply with a long list of legal requirements whereas tenants withholding rent have to comply with none. Landlords who fail to give tenants a detailed statement within 30 days face the prospect of paying treble damages and the tenants’ legal fees. Tenants who withhold rent even if a judge concludes that the withholding was not justified do not have to pay a penalty of any kind.
If you think of tenants as wards of the state and your image of landlords conforms to popular Dickensian stereotypes, or this, or this, this imbalance in the law may not bother you much. If so, I urge to watch a real landlord, Garth Meikle, argue a real case in front of the Supreme Judicial Court. To see and hear Mr. Meikle click here, and start at minute 18:38. Mr. Meikle simply wanted his apartment back so that one of his children could move in, but the tenant alleged that Mr. Meikle had made a mistake with the security deposit. By the way, the tenant received pro bono representation from a Harvard Law School clinic; the landlord had to represent himself.
On the other hand, if you think that the provision of affordable homes is a social good that we should encourage or at least not discourage, and that it might be time to restore some balance to landlord-tenant law, there is hope. Recently I went to the State House to listen to testimony about a proposal to amend the rent-withholding law by requiring tenants to deposit the withheld rent into escrow. Will it pass? I shall keep you posted.
Now for the quiz that I promised in the headline.
If I had to choose one word to describe the current security-deposit law it would be persnickety, an adjective (possibly related to the Scottish pernickety or pernicky) that boasts the highest jurisprudential imprimatur available on this side of the Atlantic, namely a 2011 decision of the Supreme Court of the United States.
Question: Which justice penned the opinion?
Email your answer to email@example.com with the word persnickety in the subject line. There will be a prize for the first correct answer.* But, please, no pre-quiz use of Google, LexisNexis, etc. We use the honor system around here.
* A warm glow.**
** Subject to availability, satisfaction not guaranteed, and no warranties as to fitness for general or particular purpose. Some glow-feelers may experience side effects so before winning this quiz talk to your primary care physician, pharmacist, and faith-community leader.
February 23, 2016:- A case that started in the Western Division Housing Court in 2009, Clark v. Leisure Woods Estates, Inc., has provided some clarity as to how much money a tenant can get from a landlord under M.G.L. c. 186, S. 14. Judge Robert G. Fields found that the landlord violated the quiet-enjoyment provision in two different ways and awarded triple damages for each violation, i.e. two separate triple-damage awards. The Appeals Court vacated one of the two triple-damages awards as duplicative, holding that
only one triple rent award is available in a single proceeding under S. 14, no matter how many ways the landlord interferes with the tenant’s quiet enjoyment.
In a footnote, the Court noted that the statute “prohibits five separate categories of landlord misconduct” of which the Leisure Woods case involved just one (interference with quiet enjoyment). The decision “does not address a situation in which the landlord violated two or more categories.” So if landlords violate the right of quiet enjoyment and violate S. 14 in other ways as well (e.g. cross-metering, failing to provide adequate heat) they still face the threat of having to pay multiple damages for those other violations in addition to the quiet-enjoyment violation. But at least they are only liable for one triple-damage award per category.
In a nutshell, the decision limits the exposure of landlords somewhat, and reduces the leverage of tenants’ counsel concomitantly. Tenants who show 57 varieties of violation of their right to quiet enjoyment should not expect 57 separate awards of triple damages.
February 4, 2016:- Employment lawyers have been wondering, “Will Massachusetts adopt or reject the after-acquired evidence doctrine?” Today we have the answer: No.
If an employer terminates an employee for no cause and later discovers a reason that would have provided grounds for discharge, later on in court may the employer rely on that after-acquired evidence as justification? In states with the after-acquired evidence doctrine, the answer is yes. We are not one of those states. But we do not positively not have the doctrine either, if you see what I mean.
In announcing its decision in EventMonitor, Inc. v. Leness, the Supreme Judicial Court chose not to reach the issue of after-acquired evidence. So for the time being, the doctrine is neither accepted nor rejected.
In 1945, when it became clear that Winston Churchill and the Conservative Party had lost the general election, Churchill’s wife suggested that the loss might be a blessing in disguise. Churchill replied, “At the moment it seems quite effectively disguised.”
But there is no disguising the blessing in a recent Rule 1:28 summary decision by a panel of the Appeals Court with the fortuitous docket number 1945, in which a lawyer named Churchill won a noteworthy victory. The panel affirmed a jury award of $424,000.00 in favor of Attorney Churchill’s client, Dennis Craig, and — as icing on the blessed cake –granted Mr. Craig the costs and fees he incurred in defending the appeal .
The case is Craig v. Sterling Lion, LLC, and it concerned the Wage Act. The employee, Mr. Craig, sued his former employer for unpaid wages, and the jury found in his favor, awarding him treble damages and attorney’s fees.
The employer, Sterling Lion, LLC, appealed, arguing that (1) before starting his lawsuit Mr. Craig had failed to file a Wage Act complaint with the Attorney General, and (2) the trial judge had not given the jury an instruction about joint ventures. Sterling Lion hoped to characterize Mr. Craig as a joint venturer (similar to a partner) not an employee and, therefore, not entitled to the protection of the Wage Act.
The three-justice panel of the Appeals Court disposed of the first point by noting that during the trial the employer’s attorney told the judge that Sterling Lion would not be raising the issue as a defense and stipulated that the Attorney General had issued Mr. Craig with a right-to-sue letter. As for the second point regarding joint venture, when he gave evidence at trial Sterling Lion’s principal testified that Mr. Craig had not been a joint venturer or partner. In view of that testimony, the justices decided that the trial judge was correct in not giving the joint-venture instruction.
This Churchillian success story should remind Massachusetts employers of the dangers both of misclassifying employees and failing to pay owed wages.