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Posts tagged ‘legislative drafting’

Court cuts off gas contracts

August 17, 2016

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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.

No sex please, we’re Bay Staters

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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

 

 

 

 

 

Issue more regulations, court tells agency

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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.

Another campaign finance rule. KA CHING!

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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.

Peter Vickery_2012_focus

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.

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

October 30, 2015

petervickery

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

October 19, 2015

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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.

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

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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?

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.

 

Two Reasons to Worry About the New Domestic Worker Law

December 31, 2014

petervickery

At a recent conference on employment law, I heard a panelist say that the new Massachusetts law on domestic workers will leave people who hire housecleaners vulnerable to lawsuits in the Massachusetts Commission Against Discrimination (MCAD). And those people need not be employers of six or more workers: Even individual homeowners will be open to suit in the MCAD. My first thought was that housecleaners have a hard enough time as it is, without having their potential clients scared away by politicians. After all, who in their right mind would engage the services of a cleaner if the deal included a possible sojourn in the MCAD? My second thought was that the panelist had to be mistaken and that I must go back to the office and read the whole statute for myself. So I did, and now I am slightly more worried than before.

The statute in question is M.G.L. c.149, s. 190 and s. 191, which you can read here and here. Its proponents (the National Domestic Workers Alliance) gave it the moniker the Domestic Workers Bill of Rights, and in their FAQs they claim that it covers “housekeepers, housecleaners, nannies, and those who care for the sick, convalescing or elderly.” Some provisions are already in force, and the law in its entirety comes into effect on April 1, 2015. I suspect that by May 1, 2015, the MCAD will have screened in at least one case of a disgruntled housecleaner suing a homeowner for harassment on the basis of sex, sexual orientation, gender identity, race, color, age, religion, national origin, disability, or some combination thereof. Of course, this will depend on how the MCAD construes the statutory definition of “domestic worker.”

So who is a “domestic worker” under the Domestic Workers Bill of Rights?  Before I tell you who is one, let me tell you who is not one. There are three categories of workers who, although they would qualify as domestic workers in ordinary common parlance, fall outside the statute’s definition of the term. First, personal care attendants. Second, people whose services “primarily consist of childcare on a casual, intermittent and irregular basis,” i.e. babysitters. Third, “an individual whose vocation is not childcare.”

Yes, according to the text of the new law, and contrary to the assertion of the National Domestic Workers Alliance, the term “domestic worker” does not include “an individual whose vocation is not childcare.” The two negatives can trip the reader up, so the exclusion merits some time and attention. Bear with me while I re-state it: The term “domestic worker” does not include “an individual whose vocation is not childcare.”

If my powers of reasoning and grasp of English are up to snuff, a domestic worker must be an individual whose vocation is childcare. In other words, if you are an individual whose vocation is childcare, you are a domestic worker; if your vocation is not childcare, you are not a domestic worker. Either the Legislature consciously and deliberately chose to limit the Domestic Workers Bill of Rights to childcare workers, or did so by accident. I am not sure which is worse.

The exemption within the definition defies one of the elementary principles of draftsmanship and rule-making, one that has been around since antiquity. I am no Latin scholar, but I feel confident that when Cicero said exceptio probat regulam in casibus non exceptis he meant that the exception confirms the rule in the cases not excepted, not that the exception should swallow the rule. Accordingly, if one of my Legislative Drafting students had submitted a draft bill containing such a poorly crafted definition, she or he would have to try again.

The meaning of the exemption is plain. Like personal care attendants and babysitters, people whose vocation is not childcare are not “domestic workers” and not, therefore, entitled to the statute’s protection. From the statutory-construction standpoint that should be an end of it. Interpretatio cessat in claris as the maxim says (interpretation comes to an end when the text is clear). But is this what the Legislature meant? I doubt it, given that the Legislature defined the term “domestic worker” to include caring for the elderly, a task not synonymous with — in fact, quite distinct from — caring for children.

What will happen when Mr. Wooster, facing the need to retrench, decides, as part of his belt-tightening, to let go of old Jeeves, his long-suffering English factotum? If Jeeves files a complaint against Wooster in the MCAD alleging harassment on the basis of — picking a couple of categories at random — age and national origin, what will the MCAD intake staffer tell him: Sorry, you lack standing to sue under Chapter 149, Section 191, because you are an individual whose vocation is not childcare? “Is that so?” Jeeves might say, eyebrow raised.

To summarize, my two reasons for worrying about this new law are (1) what it tries to do, (2) that its failure to do what it tries to do will make no difference to the construction the MCAD will put on it. The Legislature’s unintentional limitation of the law to childcare workers will not prevent the MCAD from construing the law as if the limitation did not exist. The MCAD will pretend that the Legislature had drafted it competently, and the courts will defer to the MCAD’s interpretation.

For housecleaners looking for work in Massachusetts, life may become just that bit harder in 2015.

Peter Vickery, Esq.

Peter Vickery, Esq.

Will Legislature Pass Cosby’s Law?

December 2, 2014

petervickery

bill-cosby

Bill Cosby

Bill Cosby wants Massachusetts to grant his image remunerative life after death by amending the commonwealth’s right-of-publicity law. If his bill becomes law, the right to commercially exploit the Cosby image will outlive Mr. Cosby himself by 70 years (the earliest point by which, to be snide, I predict the brand might recover some monetary value).

Until the scandalous allegations about Mr. Cosby returned to the headlines, the media having lost interest for a few years, it looked as if he was going to get his way. The State Senate had, back in 2012, already approved his proposal, “An Act Protecting the Commercial Value of Artists, Entertainers, and Other Notable Personalities,” to give the measure its full title. It did so again in 2014, and this time the bill made it as far as the Ways and Means Committee, where it lingered at the close of the official legislative session.

I think it unlikely that the Massachusetts Legislature will use its unofficial sessions to pass the bill, but can claim no inside knowledge. Leading the charge for the Cosby Law was Senate-President-in-Waiting, Stan Rosenberg. When the Legislature reassembles in January, the newly-elevated Senator Rosenberg will no longer be in the bill-sponsoring business and, with the putative Cosby Law about as popular as its eponym, a new lead sponsor may be hard to find. Let us hope so.

There are several reasons to oppose the bill. First, it grants special rights to one particular class of Bay Staters. At present, we residents of Massachusetts all have the statutory right to control the commercial exploitation of our names and likenesses. You can read the relevant statute here, and if you read only the first two words you will learn something important, namely that the current law protects “any person.” That is not some fancy legalistic term of art, by the way: It means any person. The Cosby Law, in contrast, would protect you only if you happen to be a “personality,” which the bill defines as “an individual whose identity has commercial value.” It would not merely amend the current law but repeal and replace it. Ordinary residents would no longer enjoy the right of publicity. That right would belong only to celebrities, not we the hoi polloi.

My second reason for hoping the proposed Cosby Law fades away is its potential chilling effect. At the risk of making a sweeping generalization, I have noticed that powerful people rarely welcome criticism. If there is a plausibly legitimate method for muzzling their critics, they will use it. Although the Cosby bill expressly allows the use of a “personality’s identity” for purposes of “news report or commentary” as well as in artistic and expressive works, some lawyers to the rich and famous have a tendency to send threatening letters to awkward writers and artists anyway. Those on the receiving end may know that they are within their rights but fear the cost of proving it. So they give in without a fight. When there is no downside to sending baseless cease-and-desist letters, the consiglieri will send them.

Third, the bill creates the right to control the commercial use of a personality’s “image,” an ambiguous term that the bill does not define. In fact, the word “image” does not appear in the bill’s relatively clear definition of “identity,” i.e. “a personality’s name, likeness, voice, or signature that uniquely identifies that particular personality.” Injecting the undefined word “image” into the bill creates just the kind of ambiguity that lawyers to the rich and famous could exploit for their nefarious, speech-chilling ends (see above).

My fourth and final reason is this. The bill contains the following: “A personality shall have a property interest in such personality’s identity and shall have the exclusive right to control the commercial use of the personality’s identity during the personality’s life and for 70 years after the date of the personality’s death.” What the bill aims to achieve here is not so much a legal impossibility as an ontological and biological one. The dead cannot control anything. That is just one of the many features that make death so unappealing.

Now, I think I know what the drafters meant to write — that the right should endure for 70 years after death, if vested in a transferee — but what they wrote does not embody that meaning. So they should tear up this draft and try again. Or, better still, just tear up this draft and leave it at that.

No workers comp for criticism or questions

October 21, 2013

petervickery

Workers Comp image

Criticism not compensable

If the boss criticizes you, can you claim workers’ comp? Some readers may consider the question unworthy of judicial resources but it was at the heart of Joseph Upton’s Case, which the Appeals Court had to ponder recently.

Imagine this situation. An employer suspects that an employee may not have been completely candid about a work-related matter relating to money. The employer questions the employee about the discrepancy. After being questioned the employee experiences an emotional reaction with physical symptoms (e.g. chest pains, shortness of breath) serious enough to prevent a return to work. May the employee collect workers compensation for the “emotional disability”?

Last week the Appeals Court said no. If an emotional disability arises out of “supervisory criticism or questioning” it constitutes a bona fide personnel action, and under Section 1(7A) of the Workers’ Compensation Act disabilities that arise principally out of such actions are not compensable. In reaching this conclusion, the court overturned the decision of the reviewing board in the Department of Industrial Accidents, which had itself overturned the decision of the administrative judge who heard the case.

The current version of Section 1(7A) is the product of several attempts by the Legislature to limit the circumstances in which employees can collect for emotional injuries. Given this progressive tightening of the statute by barring recovery for emotional distress resulting from transfer, demotion, and termination, the Appeals Court found it “improbable that the Legislature would… then allow compensation for the preliminary and tentative events of investigation and fact finding.” This reading of the plain language of the statute in the context of the problem the Legislature was trying to solve produced a common-sense result in line with that of the administrative judge. In contrast, if the court had let board’s decision stand employers would find themselves in an impossible situation, unable to even question an employee for fear of triggering an emotional-disability workers’ comp claim.

After explaining how its analysis of the Workers’ Compensation Act differed from the board’s, the Appeals Court addressed the issue of judicial deference. Where an administrative agency has the task of administering a statute, traditionally the courts defer to the agency’s interpretation. But after noting that “the policy of judicial deference is not a practice of judicial abdication,” the court observed that the board had never before taken the position that emotional injuries resulting from questioning or criticism merited compensation. So, the court concluded, “the usual factors supporting deference for an agency interpretation are absent.”

What should employers take away from this decision? The statute does not entitle employees to compensation for emotional disabilities arising out of bona fide personnel actions, which can include “supervisory criticism or questioning.”

Click here for an account of the underlying case.

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