Attorney and Counselor at Law
June 2,2021:- Where is the $12 million of public money earmarked for the Eviction Diversion Initiative actually going?
Finding out is harder than you might think because the body in charge of distributing the money (the Massachusetts Legal Assistance Corporation) says that it is not subject to the Public Records Law. So on behalf of MassLandlords, I asked the Legislature to investigate.
To learn more, you can read my article in the MassLandlords newsletter by clicking here.
June 1,2021:- On Thursday, June 3, starting at 10:00 a.m., the Massachusetts commission on civil asset forfeiture will hold a meeting that you can watch live via malegislature.gov.
Readers will recall that civil asset forfeiture is where law enforcement seizes property that they have mere probable cause to believe may have been used in connection with a crime and then the owner has to go to court to prove innocence in order to get their property back. The system lets police and prosecutors treat ordinary people like an ATM.
Does this really happen in Massachusetts? Yes, as the experience of Malinda Harris, covered in Reason magazine, illustrates:
“On March 4, 2015, police in Berkshire County, Massachusetts, seized Malinda Harris’ 2011 Infiniti G37 because her son, Trevice, was suspected of selling drugs. Although Harris had let Trevice borrow her car, the cops never alleged that he used it for drug dealing or that she knew about her son’s illegal activity. Harris heard nothing more about her purloined property until October 2020, more than five years after the seizure, when she was served with a civil forfeiture complaint that had been prepared the previous January.”
Jacob Sullum, Reason, 3.2.2021
Law enforcement seized and held Malinda Harris’s car for five years before even allowing her an opportunity to try to get it back. There is nothing extraordinary about the experience of Ms. Harris, other than the fact that she came to the attention of a nonprofit organization that was able to represent her for free. That is what makes her case exceptional.
If you think that Ms. Harris’s case is an outlier, here are some facts and figures from the Massachusetts Trial Court that speak for themselves:
I intend to watch the commission’s hearing and to post an update soon afterwards. And I will be right on the keyboard as soon as the Judiciary Committee schedules a hearing for the bill that I wrote (H.1724) to provide free counsel in civil asset forfeiture cases.
In the meantime, for the op-ed Malinda Harris co-authored in USA Today click here. For the latest report from the Institute for Justice, titled Policing for Profit, click here.
For a Cato Institute interview with Attorney Tom Sandefur on the subject of civil asset forfeiture (with a mention of the Malinda Harris case) click here.
And lest you think that this is a libertarians-only hobbyhorse, click here to read about the ACLU’s position.
Featured image by Logan Weaver on Unsplash
May 12, 2021:- A few years ago, by way of an outside section to the budget, the Massachusetts Legislature established a Civil Forfeiture Commission to “study civil asset forfeiture policies and practices in the commonwealth… [and] submit a report of its study and any recommendations, together with any draft legislation necessary to carry those recommendations into effect.”
Before reading any further, it may be helpful to know these key facts about civil asset forfeiture in Massachusetts:
Click here for my previous post on the subject.
On March 30, 2021, the Commission reconvened after a lengthy COVID-19 State of Emergency-related hiatus. Here is a link to the video of the meeting.
When listening to the chair, Majority Leader Representative Claire Cronin, you will notice that she reminds the members of the need to confine their work to the charge that the Legislature gave them. When Senator Jamie Eldridge, Senate chair of the Joint Committee on the Judiciary, suggests (at around minute 50) asking presenters to include stories from people directly affected by civil asset forfeiture, Representative Cronin says that it “may be beyond the scope of the charge.”
This is odd.
If you read the charge (follow the link above in the words “outside section”) you will see that one of the commission’s express tasks is to conduct “an analysis of any racial or socioeconomic disparities in the application of civil asset forfeiture laws in the commonwealth.” Analysis means something more than merely presenting the figures. Hearing the voices of ordinary people with first-hand experience of the practice could be very helpful in analyzing the racial and socioeconomic disparities.
In addition, the charge begins with the customary tautologous phrase, “the study shall include, but not be limited to.”*
The commission’s remit is quite broad, certainly broad enough to listen to residents who have committed no crime but have had their property seized by the government. I hope that Senator Eldridge and other members of the commission will persevere and invite voices from outside the political class to help the commission really analyze the disparate impacts of civil asset forfeiture.
Next the commission is going to look at the annual reports that District Attorneys file with the Legislature about how they spend the fruits of their seizures; seek data from the State Police about the number of forfeitures connected to cases that result in prosecutions; and ask Attorney General Maura Healy how long her office holds on to seized assets.
Stay tuned.
* I call it tautologous because the word “include” means to be part of a thing, as opposed to being the whole thing. Adding “not limited to” is redundant, in my opinion. Students of legislative drafting, please note: Nobody cares about my opinion.
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On Wednesday, February 3 at 5:00 p.m. I will be offering a presentation for MassLandlords on the subject of bills for the next sessions of the Massachusetts Legislature.
One of the bills has to do with civil asset forfeiture, by the way. What does that have to do with housing law? Tune in and fine out!
To learn more and to register click here.
October 2, 2020:- They say a week is a long time in politics. But a whole year is not, apparently. And a whole year beyond the expiry of the state of emergency is how long the next eviction moratorium will last if the Joint Housing Committee of the Massachusetts Legislature gets its way.
Under the new proposal, which now goes to Ways and Means and the Legislature as a whole, housing providers whose renters stop paying rent would be able to apply for a tax credit to cover the arrears “subject to availability.”
The term “subject to availability” does not sound like much of a guarantee and, sure enough, this article in CommonWealth Magazine quotes one of the sponsors as saying that the “funding structure is something intentionally left out.”
So they left it out on purpose. Thank goodness they didn’t just forget.
July 30, 2020:- Perhaps I am a slow learner. But I think I just realized something important about the eviction moratorium.
Those following the Matorin v. EOHED case challenging Chapter 65 (the eviction moratorium) will know that earlier today the Superior Court held a hearing on the plaintiffs’ motion for a preliminary injunction.
What struck me while I was watching the oral argument was the size of the gap between the law’s supposed purpose and its actual effect. Then I realized that there is a gap between the two sides over the nature of the very thing they are arguing about, i.e. evictions. I will explain what I mean in a moment, but first a very brief explanation of a key term, namely “execution.”
In Massachusetts, only a judge can evict a tenant and award the housing provider possession of the rented premises. If, after trial, the judge decides to award the housing provider possession, the housing provider has to wait 10 days and then ask for a document called the writ of execution. This is the document that authorizes the sheriff or constable to physically remove the renters and their belongings. When the sheriff does so, it is called levying.
When non-lawyers think about evictions, what they have in mind is the event called levying the execution. It is quite rare, fortunately.
Before the constables or sheriffs can even get their hands on an execution to levy, the renters can ask the judge for a stay, i.e. a pause or delay. The law allows judges to stay execution for up to six months (12 months, if the renters have disabilities or are age 60+).
Rule 13 of the Uniform Rules of Summary Process lays out the steps.
Now back to the argument over Chapter 65.
The proponents of Chapter 65 argue that the Legislature enacted the eviction moratorium in order to stop people being made homeless during the COVID 19 pandemic. If that had indeed been the real purpose, the Legislature could have achieved it by banning the courts from issuing executions and prohibiting the sheriffs from levying on any executions already issued. Here is the bill the Legislature could have enacted:
In any summary process case, the court shall not issue execution, and no person shall levy execution, until 45 days after the end of the state of emergency.
But the Legislature chose not to do that. Instead of banning the thing that non-lawyers think of as evictions (levied executions), it banned housing providers from even getting into court. And that, in turn, bars access to the trained Housing Court mediators who resolve disputes and help the parties work out payment plans.
If the Legislature and Governor had defined the problem they were trying to solve, they would not have created the unholy mess that will confront so many housing providers and renters when the moratorium finally ends. Defining problems before attempting to solve them is a big part of the job. And, unlike some of the housing providers I represent, the legislators are actually getting paid. Legislative salary moratorium, anyone?
As for the hearing in the Matorin case, the judge took the matter under advisement, which means that he will issue his decision at a later date. To stay up to date, and to read more about the case from Attorney Richard Vetstein, who is one of the two lawyers representing the Matorin plaintiffs, click here.
April 15, 2020:- Just when you thought it couldn’t get any worse. If the Massachusetts Legislature passes the eviction moratorium embodied in this bill, which emerged from the Senate today, it will not only violate two of the bedrock rights that are guaranteed in the Massachusetts Declaration of Rights, but will also grant to the Governor a power that no executive branch in the Anglosphere — no English monarch even — has claimed since the 17th Century: the power of suspending and dispensing the laws. This is a step backward, a step back to the era of royal absolutism.
It was already bad enough that our full-time salaried lawmakers wished to take private property without compensation and bar people from going to the courts. As I pointed out in a previous post, Article 10 of the Massachusetts Declaration of Rights guarantees reasonable compensation when the government takes property for public uses and Article 11 guarantees everyone the right to a remedy by recourse to the law and the right to obtain justice freely and promptly. Neither of those articles contains a carve-out for when the Governor declares an emergency.
Now the Legislature intends to strip away another right, one that the people of Massachusetts granted to their Legislature, namely the power to decide how long a statute should remain in force. Section 7 of the new bill says that the eviction moratorium will expire in 120 days unless the Governor extends it. Read that again. Unless the Governor extends it. The alleged power to suspend or dispense legislation was a medieval prerogative reclaimed in the 1640s by Charles I. Things went poorly from there, for both the king and the kingdom.
If this were simply a matter of the Legislature surrendering their own rights to the executive branch, it would merit little more than a meh. But the right is not theirs to give. The purpose behind the separation of powers is to protect the rights of the people, not the rights of their full-time salaried servants in the State House.
If Governor Baker signs this bill into law we will have crossed another constitutional threshold.
March 31, 2020:- For many people in Massachusetts, tomorrow rent is due. Some will face a very tough choice. Why?
Because today is the seventh day since Governor Baker’s business-closure order took effect. At the stroke of a pen, approximately 150,000 people had their jobs and livelihoods taken away (albeit with the best of intentions on the part of the Governor).
People are hurting. For a lot of us, renters and home-owners alike, it feels like we are about to fall off a cliff.
In this emergency, no landlord would want to ask the Housing Court to evict a tenant for nonpayment of rent. And now many do not have that option anyway, even for tenants who are still in work and can afford to pay rent. Why?
Because today is also the fifth day since Congress passed the CARES Act, which (among other things) imposes a 4-month moratorium on evictions from residential properties with federally-backed mortgages. For the applicable language, scroll down to page 574 and read Section 4024(a)(4) and (5).
In the coming months, more and more people are going to face hardship and the appalling choice between food and rent. I know which one I would choose.
There will be a handful–there always is–of those who can pay but won’t; those who will take advantage, safe in the knowledge that if they live in a property with a federally backed mortgage the landlord must not send them a notice to quite, let alone ask a judge to evict them.
So who is going to pay for the cost of housing people who can’t (or won’t) pay rent?
Who is going to pay the landlord’s employees and contractors, the people who keep rental homes fit to live in?
Again, most of us know that the Governor has the best of intentions in issuing the orders that are causing businesses to close down and shed workers. That’s a given. But when it creates a problem, government has a responsibility to fix it. Here’s one way, and if you agree please sign the petition.
The Commonwealth should immediately stand as surety for renters who cannot afford to pay rent. A surety bond is a guarantee that if one party to a contract does not perform its obligations (e.g. fails to make timely payments) an outsider will pick up some or all of the tab so that the other party to the contract does not lose out.
In order to safeguard homes during and after the emergency, the Legislature needs to act now and issue surety bonds.
If you think that the Commonwealth as a whole should stabilize housing by guaranteeing rents via surety bonds, sign the petition today.
Tell the Legislature to keep us from falling off that cliff.
Is an employer free to establish a no-tipping policy? Yes, said the Supreme Judicial Court (SJC), rejecting the argument of a group of current and former Dunkin’ Donuts employees who contended that Massachusetts law prohibits no-tipping policies. You can read the decision by clicking here.
When it enacted the Tips Act (M.G.L. c. 149, S. 152A) the Legislature barred employers from deducting or retaining tips that customers had given to the wait staff. Counsel for the plaintiffs (the employees) argued that the words “deducting” and “retaining” are flexible enough to mean “prohibiting.” Not so, said the SJC. Making it unlawful for restaurant/bar-owners to keep or skim tips that customers have left for servers is not the same as forbidding them from trying to prevent customers from tipping in the first place. A no-tipping policy simply does not violate the Tips Act.
And so long as the owner clearly communicates the policy to customers, if customers still leave money behind, the servers do not have the right to claim that money as theirs. The employer is not breaking the law by keeping it or giving it away.
So employers: If you have a no-tipping policy, make sure that you get the message across to your customer clearly. That’s my tip for the day.
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.
Do you remember that day in high school or college when you learned about the separation of powers? Today the Massachusetts Supreme Judicial Court issued a decision that contains some language which might leave you wondering whether, during the intervening years, somebody went and amended the Constitution.
The case is Massachusetts Teachers’ Retirement System v. Contributory Retirement Appeal Board and it is important for several reasons. This post deals with just one of those reasons, one that matters to anyone who might be affected by how much leeway a government agency has when it interprets a statute.
First some background. In 2005 the Legislature passed a law allowing vocational education teachers to increase their pensions by having up to three years of non-teaching employment count toward their “creditable service.” During that three-year period they must have been working in the same trade they ended up teaching, e.g. a plumber who becomes a vocational plumbing teacher can ask the retirement board to count three years of her pre-teaching plumbing when calculating her pension.
To qualify for this significant pension boost, teachers have to contribute “makeup payments” into the retirement system, in an amount equal to ten per cent of their regular annual compensation. They also have to pay “buyback interest.” But when should the interest accrue: when they entered the retirement system, or the start of the three-year period?
In answering that question, two agencies had competing interpretations of the statute. One agency, the Contributory Retirement Appeals Board (CRAB) said that the statute was clear and unambiguous. Interest should run from when the teacher joined the system. The other agency, the Massachusetts Teachers’ Retirement System (MTRS) disagreed, saying that the statute was silent on the issue. The Supreme Judicial Court heard the same silence, and held that the way the MTRS filled the silence was reasonable and entitled to deference.
One topic for a future post is the question of how silent the statute really is. In the meantime, I would like to address a more basic, constitutional aspect of the case.
What the Court said in explaining its decision is worth noting, not only if issues like democratic accountability rank high on your list of priorities, but also if you think that at some point your life may be affected by how an executive agency interprets a piece of legislation.
By way of a prelude to the Court’s explanation, let me refresh your memory of that high school or college lesson. The Constitution of the United States embodies the doctrine of the separation of powers, allocating the executive, legislative, and judicial roles to three distinct branches. The Massachusetts Constitution, which predates it, is more explicit. Article 30 states:
“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”
Because the Constitution prohibits the Legislature from delegating is lawmaking powers to the executive, courts and commentators refer to the “doctrine of non-delegation.” Of course, Massachusetts judges have long recognized that modern government requires some degree of delegation, but they have distinguished between situations where agencies are just “working out the details” of a policy that the Legislature has announced (which is permissible) and those where the agency is making “fundamental policy” (which is not).
If the Legislature has delegated to an agency the task of making “fundamental policy decisions” it has violated Article 30. That was a point the Court made very clear in 2006 when it decided Commonwealth v. Clemmey. But in today’s decision, which did not mention the non-delegation doctrine, the Court said this:
“[T]he Legislature simply chose to be silent on the issue, thereby leaving a policy gap to be filled by agency action.”
So this is a policy question, without doubt, not merely a matter of “working out the details.” Is the question of when interest accrues on a vocational teacher’s buyback a “fundamental policy question” or is it something less than that, e.g. a trifling or minor policy question? This recent report on the commonwealth’s unfunded pensions liabilities may influence how you answer that question. It mentions a figure of $23.6 billion.
One important lesson from today’s decision is this: It has become even easier for the Legislature to delegate policy questions to executive agencies, when even an issue that involves a multi-billion dollar unfunded mandate does not qualify as a “fundamental policy decision” of the sort that the Legislature has no constitutional right to delegate. If you have any questions or comments about the decision, I welcome your posts.
Peter Vickery, Esq., 