Juneteenth: Remembering James H. Wolff, Esq.

June 19, 2020:- This Juneteenth please take some time to remember James H. Wolff, Esq., a naval veteran of the Civil War and co-founder of the first Black law firm in Massachusetts.

Wolff was just 14 when he enlisted in the US Navy at the outbreak of the Civil War. Born to free parents in New Hampshire, he must have known that by volunteering to fight the Slave Power he was at risk of losing both his liberty and his life. Live free or die were the conditions of his daily life, not simply a motto.

He was aboard Minnesota when she bombarded the Confederates into surrender at Fort Hatteras, and when she became a stationary target for enemy fire after running aground early in the Battle of Hampton Roads. Three of her crew died in that engagement.

Wolff survived the battle and the rest of the war, and went on to practice law in Massachusetts.  Twenty years after the war’s end and the passage of the Massachusetts anti-discrimination act, Wolff represented the plaintiff in a case that tested the statute’s limits and led to its expansion.  His client in that 1885 case, Edward E. Brown, also happened to be his law partner. Together with attorney Edwin Garrison Walker, Wolff and Brown established the state’s first Black law firm. It was a firm with a mission.

After the decision of the Supreme Court of the United States in the Civil Rights Cases, 109 U.S. 3 (1883) that Congress lacked the constitutional authority to prohibit private discrimination (effectively neutralizing the federal Civil Rights Act) Wolff and his partners helped lead the campaign for stronger state-level legislation in Massachusetts. One element of that campaign took the form of a lawsuit against a Boston skating rink that refused to sell tickets to people of color. Brown was a plaintiff, and Wolff his attorney. They won.

Coordinating the case and legislative effort to enforce and amend the 1865 law was the Wendell Phillips Club, which functioned as a sort of precursor to the NAACP, bringing together business owners, ministers, and lawyers in the cause of civil rights.  Walker, Wolff, and Brown were at the forefront, litigating and lobbying for liberty pro bono publico while somehow bringing in enough billable work to pay the bills and raise their families (both of Wolff’s sons followed him into the law, by the way).

For a fuller account of the case, see my article “The Genesis of the Black Law Firm in Massachusetts,” Massachusetts Legal History 5 (1999).  Not quite everything ever published is available online, it seems, so if you would like a copy, email your request to peter@petervickery.com.

In the meantime, please devote a few moments of thought to James H. Wolff.  An exemplar of physical and moral courage, he is worthy of remembrance.

james h wolff
James H. Wolff, Esq.

Hot news: lawsuit over eviction moratorium in NY

May 28, 2020:- Alleging that the eviction moratorium operates as a taking of their property without just compensation, a group of housing providers in New York have filed suit in federal court, according to the New York Law Journal.

Stay tuned.

man reading burning newspaper
Photo by Danya Gutan on Pexels.com

NY lawmakers extend eviction moratorium

May 28, 2020:- According to this report in News Brig, the New York legislature voted to extend the moratorium on residential evictions to last as long as the state of emergency. Originally, the moratorium was scheduled to expire in August.

Unlike Massachusetts (whose eviction moratorium will end on August 18 unless the Governor extends it)* New York’s moratorium is confined to cases where the reason for non-payment is related to COVID 19.  In contrast, the Massachusetts law, Chapter 65, prohibits housing providers starting evictions for any and all reasons, except where a tenant’s criminal activity or lease violations “may impact the health or safety” of another person on the premises or the general public.

*Under Chapter 65, if Governor Baker so chooses, he could extend the moratorium for the length of the state of emergency plus 45 days. How long will state of emergency last? How long is a piece of string?

gray yarn ball
Photo by Steve Johnson on Pexels.com

 

Rent guarantee insurance

May 22, 2020:- Missed rental payments are on the rise in Massachusetts, but a market solution may be available.

Even though the eviction moratorium law (Chapter 65) says that tenants are required to pay rent, the lack of an enforcement mechanism is leading some to skip paying the rent with a sense of impunity. Housing providers still have to pay to maintain the property and keep it up to code even when they are not receiving rent. One way for providers to stay afloat might be rent-guarantee insurance, also known as rent default insurance, which promises coverage in the event that a tenant stops paying rent.

Unless and until the Massachusetts Legislature takes up the Fair and Equal Housing Guarantee surety-bond policy that MassLandlords is promoting, some housing providers may find this kind of product helpful. And I see that one company, Avail, has a short video on the subject.

If affordable, insurance might be a viable market solution to government failure. By “government failure” I mean the Commonwealth requiring one party to provide housing without being able to go to court to make the other party pay for said housing. This forces rental-property owners to either (a) provide free housing (not a great business model) or (b) exit the market, thereby reducing the amount of rental housing available.

Ideally, Governor Charlie Baker would let Chapter 65 expire on August 18 rather than exercising his option to extend it. But if he chooses to prolong the moratorium, insurance might do the trick.

Please note that I have no contractual, fiduciary, relationship with Avail or Steady Marketplace, either oral or written, and receive no remuneration of any kind from the companies, make no representations regarding them, and suspect that there are other entities out there that offer similar insurance products. In the vernacular, I am not shilling for Avail or Steady Marketplace, or any other insurance company for that matter.  I just think that for some housing providers, rent-guarantee insurance might be worth exploring.

bitcoins and u s dollar bills
Photo by David McBee on Pexels.com

Dear Governor: One housing provider’s message to Charlie Baker

April 29, 2020:- Massachusetts law now bans property owners from seeking summary process except where a tenant’s criminal activity/lease violations “may impact the health or safety” of others.  It forces some landlords to extend credit that they cannot afford to give. This near-barring of the courthouse doors to one particular class of people (plus its forced-loan feature) prompted Frederik Winsser to write a letter to Massachusetts Governor Charlie Baker, which Mr. Winsser kindly gave me permission to publish here.

______

Dear Governor Baker:

I am writing about the effect that the COVID-19 epidemic is having on housing in the Commonwealth of Massachusetts.

I am Housing Provider – a ‘Mom and Pop’ small property owner/landlord in Massachusetts. I am a retired senior and receive a small pension, a limited social security benefit, and a small VA service connected disability payment. I depend upon my rental income to pay for my medical expenses, my mortgages, property taxes, insurance, and other bills.

Thirty years ago, I purchased my first house, a two family in Waltham. Over the years, I was working as an Electrical Engineer and invested work income as well as a tremendous amount of sweat equity into the house. My hard work allowed me to purchase additional rental properties, the most recent being a four family house fifteen years ago needing a lot of work.

Over the years I have invested a significant amount of time and money to improve the apartments with new kitchens, bathrooms, refinished interiors, high efficiency heating systems, and much more. For my four family house, after fifteen years of sweat equity and money invested, I still have a net $94,223.00 negative cash flow balance on my original investment. Only in 2019 did I finally have a small positive cash flow of $10,800.00.

I very well understand that there currently is a housing crisis in the country. A large number of people have lost their jobs and are unsure of their future financial security. I do understand that their ability to pay for the necessities of shelter, food, and health care are being seriously impacted.

There are programs such as Section 8, SNAP, etc., but placing the burden on the housing providers is unfair. Speaking for myself and other housing providers, we still have to pay mortgages, taxes, insurance, utilities, and expenses. If we don’t pay the property taxes, the city will place a lien on the property. With the current eviction moratorium, there is no practical remedy for us if the renters cannot or will not pay their rent. Yes, we can take them to court in three to six months for the back rent and hope to be able to collect the rent. By way of an example, last year I went to court to evict a tenant for repeated non payment of rent. In July she moved out with no forwarding address, still owing me over $3,500.00 in rent and legal expenses. Neither the police nor I can locate her.

In closing, would someone go to the supermarket, fill up a shopping cart full of groceries, and at the checkout counter say ‘I’ll pay for the groceries after the COVID crisis is over’. I don’t think so. Please do consider the plight of the housing providers as well.

Sincerely,

Frederik C. Winsser

New MCAD bill filed

February 23, 2017:- If you are charged with discrimination and you file a motion to dismiss for lack of jurisdiction, must the Massachusetts Commission Against Discrimination (MCAD) rule on your motion before launching an investigation? No, not at present. But that will change if H. 775 becomes law.

Titled “An Act Streamlining the Investigation Process of Discrimination Complaints,” the bill would require the MCAD to adjudicate a respondent’s motion first and start its investigation only if it determines that jurisdiction is proper.

Why does this matter? The main reason is the constitutional principle of the separation of powers: an executive agency should not hale people in if the Legislature has said it should not. For example, when it enacted Chapter 151B the Legislature said that the MCAD would have no jurisdiction to investigate businesses with fewer than six employees (the small-business exemption). So when the MCAD does investigate businesses with fewer than six employees it is, in effect, exercising the legislative function by re-writing the statute.

But there are pocket-book reasons too. Defending against a charge of discrimination can prove costly, which rather stacks the deck in favor of the complainant who is represented either by a lawyer working on a contingent-fee basis or by the MCAD itself. Add to that the MCAD’s institutional bias toward early resolution (which is not necessarily a bad thing) and you have an incentive for respondents to fold faster than Superman on laundry day, as Jerry Seinfeld put it.

As things stand a respondent will be tempted to settle at a commission-mandated conciliation conference early on, even if the case should never have been on the agency’s docket in the first place. Real money is at stake here, and business owners should not have to fork over for claims that should be thrown out on jurisdictional grounds. That is not an efficient use of resources. Screening out cases like these would allow businesses to devote those resources to other purposes, e.g. improving products and services to benefit their customers and creating new jobs.

The bill has been assigned to the Joint Committee on the Judiciary. Stay tuned for updates, and click here for a previous post on this subject.

business-west
Peter Vickery, Esq.

Free speech for public employees?

October 28, 2016:- If you are one of the 139,000+ people employed by state or local government in Massachusetts, today’s decision about speech-rights at work might be of interest.

The case involves an erstwhile employee of the Worcester County Sheriff’s Office, Jude Cristo, who complained about a colleague’s use of official time and facilities while campaigning for Scott Bove, a candidate running for Sheriff (unsuccessfully, as it turned out). After the election the new Sheriff, Lew Evangelidis, fired Cristo, who brought an action under federal law for violation of his civil rights, namely his right to freedom of speech guaranteed by the First Amendment.

Cristo lost. The Appeals Court applied the federal test, which protects the speech of public employees only if they are speaking as citizens and not “pursuant to their official duties.” Cristo’s complaints were pursuant to his duties, said the Appeal Court.

But in a footnote, the court left open the possibility that public employees’ speech rights under the Massachusetts Declaration of Rights might be greater than under the First Amendment. If the speech that triggered the firing was whistle-blowing, the court hinted, then the fact that it was job-related whistle-blowing would not necessarily prove fatal. In other words, the  employee might have a viable free-speech claim. Click here to read the case, Cristo v. Evangelidis.  The footnote in question is number 6 on page 15.

Tick, tock: Justice delayed

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.

IMG_7031
Attorney Peter Vickery

New MCAD guidance on transgender discrimination

September 1, 2016:- Employers take note: In compliance with the Act Relative to Transgender Discrimination that Governor Baker signed into law in July, earlier today the Massachusetts Commission Against Discrimination (MCAD) filed with the Clerk of the House of Representatives its Gender Identity Guidance. Much of the document is old, a restatement of the MCAD’s 2015 Advisory, including the “best practices” e.g. “update personnel records, email systems, and other documents to reflect [an] employee’s stated name and gender identity, and ensure confidentiality of any prior documentation of an employee’s pre-transition name or gender marker.”

But the section of the Guidance regarding proof of gender identity and restrooms (Part III. D) is new. Readers will recall that the statute requires that employers allow employees and members of the public to use the restroom “consistent with their gender identity.” The Guidance states that “[r]equiring an employee to provide identification or proof of any particular medical procedure (including gender affirming surgery) in order to access gender designated facilities, may be evidence of discriminatory bias” (emphasis added).

This is important to note because an earlier part of the Guidance (III. A: Definition of Gender Identity) states that when it investigates claims of discrimination the MCAD may look at “medical records from medical or other professionals involved in the treatment or transition of the individual seeking, in the process of, or who has completed gender transition.”

In a nutshell: When an employee files a discrimination claim against the employer the MCAD can consider evidence of a medical procedure, but ahead of time — unless it wishes to invite an MCAD investigation — an employer must not ask an employee for proof of any particular medical procedure.

IMG_7031
Peter Vickery, Esq.

Court cuts off gas contracts

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.

IMG_7031
Peter Vickery, Esq.

No sex please, we’re Bay Staters

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.

IMG_7031
Attorney Peter Vickery

 

 

 

 

 

Commission creep: discrimination agency asserts jurisdiction in late-filed cases

July 1, 2016:-  The term “mission creep” refers to a military operation that gradually expands beyond its stated objectives. A new report provides evidence of a government commission repeatedly extending its reach beyond the parameters laid out in its statutory remit, a phenomenon I hereby dub “commission creep.”

The State Auditor has published an official report on the Massachusetts Commission Against Discrimination (MCAD) and in addition to revealing the usual, garden-variety problems that bedevil state agencies (e.g. mismanagement, inefficiency,  and poor book-keeping) it confirms a long-harbored suspicion: The MCAD asserts jurisdiction where it has none. This matters not only to the small business owners who find themselves the target of costly investigations that drag on for years, but to all citizens who expect public servants to abide by one of the bedrock principles of constitutional government, namely the separation of powers (see Article 30 of the Massachusetts Constitution).

Despite clear statutory language confining its jurisdiction to cases filed within 300 days of the last allegedly discriminatory act, the Commission investigates cases filed after the deadline. And it does so on a scale that suggests something more than ineptitude, no mere unfortunate series of oopsy daisy events.

So that readers may judge for themselves, here is the text of the statute (section 5 of chapter 151B of the General Laws) in words as clear and unambiguous as the English language permits:

Any complaint filed pursuant to this section must be so filed within 300 days after the alleged act of discrimination.

The word must falls into the category of words legislative drafters call mandatory, as opposed to precatory or hortatory. In the vernacular, it is hard not mushy.

Nevertheless, the State Auditor’s report (p. 11) reveals that in the three-year period of the audit (2012-2015) the MCAD processed at least  123 separate cases where it lacked subject matter jurisdiction because the applicable statute of limitations had run its course:

[D]uring our audit period, MCAD accepted 123 complaints beyond the 300-day timeframe for complainants to file their complaints. MCAD regulations allow for this 300-day timeframe to be extended under certain conditions, but there was no documentation in the case files to substantiate that any of these complaints met those conditions.

I cannot tell whether the auditors independently identified the 123 cases or simply made note of the instances where the MCAD itself had determined that it lacked jurisdiction on the basis of the limitation period. If the latter, then the determination would have come at the end of the MCAD’s investigative phase, the point at which the Commission issues a Lack of Probable Cause (LOPC) finding. On average that point now arrives four years — yes, four years — after the filing of the complaint. In the meantime MCAD investigators will have required the employer to devote hours responding to questions and demands for internal documents and to attending “investigative conferences” at the agency’s offices.

Either way, this is an extraordinary finding on the part of the State Auditor. The 300-day deadline is not some off-the-cuff recommendation or flexible guideline but a statutory limitation. The Legislature decided that the deadline for filing a discrimination complaint with the Massachusetts Commission Against Discrimination (MCAD) is 300 days, and only the Legislature can amend a statute. By flouting the limitation period so often, the MCAD has arrogated to itself the power to legislate, a power the Massachusetts Constitution expressly reserves to the legislative branch.

The report bears out something I have suspected for some years, i.e. that the MCAD investigates cases where it clearly lacks jurisdiction. Because of my experience with the MCAD, after the 2014 gubernatorial election I sent the incoming Baker-Polito administration a proposal that would remedy the problem, and the associated problem of the MCAD improperly asserting jurisdiction over employers with fewer than six employees (another statutory limit on the MCAD’s jurisdiction called the “small-business exemption”). My proposal is this:

If a respondent files a motion to dismiss for lack of jurisdiction, the MCAD shall suspend its investigation until it has adjudicated the motion.

The proposal does not require action on the part of the Legislature. With a nudge from the Governor the Commissioners could make it happen via a simple amendment to the MCAD’s regulations, with proper notice and comment. Under my proposal, the MCAD would have to deal with the threshold matter of jurisdiction before putting the employer to the expense of a full-blown, years-long investigation.

I submitted this suggestion back in January 2015.  In view of the State Auditor’s findings, I shall re-send it.

IMG_7031
Peter Vickery, Esq.

Happy birthday, Massachusetts Constitution

June 16, 2016:-  It was on June 16, 1780 (236 years ago today) that the Constitution of the Commonwealth of Massachusetts was deemed and declared ratified. Its principal author, John Adams, produced an operating manual for a self-governing commonwealth of free people that combines practicality with elegance. If you have a minute or two to mark the occasion of our Constitution’s anniversary, you may wish to read the Preamble:

The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquility their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.

The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.

We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts.

SJC announces another defense against claims for possession

May 24, 2015:- Today the Supreme Judicial Court (SJC) sent back to the Housing Court a summary process case that started almost four years ago in August 2012. In its decision (in favor of the tenants) the SJC points out the need to promote “the legislative goal of just, speedy, and inexpensive resolution of summary process cases.” But it is not only connoisseurs of irony who will find the decision noteworthy. Although the case concerns an attempted post-foreclosure eviction, it refers to yet another defense against claims for possession (a defense, as opposed to a mere counterclaim) that may have an impact on the more run-of-the-mill landlord-tenant cases as well.

In May 2012, a mortgage company recorded the foreclosure deed  for home of Edward and Emanuela Rego. At the foreclosure sale, the Federal National Mortgage Association (Fannie Mae) took title. In August it started a summary process action in Housing Court to evict the Regos. In October 2012, the Regos filed their Answer, replete with 25 affirmative defenses and one counterclaim alleging that the mortgage company had violated the Consumer Protection Act, G.L. c. 93A.  According to the Regos’ counterclaim, the company had violated 93A by charging excessive late fees and sending deceptive notices about their eligibility for loan modifications.

Fannie Mae filed a motion for summary judgment in February 2014, almost two years after it had purchased the house. The Housing Court awarded it possession and dismissed the Regos’ counterclaim. In July 2014, the Housing Court entered final judgment in favor of Fannie Mae. But the judge did not expressly state whether he agreed with Fannie Mae’s argument that because he had awarded possession he now lacked jurisdiction to decide the 93A counterclaim. The judge scheduled a separate hearing this particular question, and dismissed the 93A counterclaim, but did not state why. This bit is important, by the way.

When Fannie Mae prevailed on its motion for summary judgment and the Housing Court awarded it possession, its lawyers may well have thought they could discern the proverbial light at the end of the tunnel. When the judge entered final judgment, the light may have shone a little more brightly. But today the SJC — which had reached down to transfer the matter to itself from the Appeals Court — vacated the summary judgment and reinstated the tenants’ counterclaims, thereby snuffing out the light and turning Fannie Mae back into the tunnel of Housing Court.

On appeal, the Regos argued that the mortgage company had failed to comply with the writing-under-seal requirement of the foreclosure statute, focusing on a statutory amendment enacted in 1906. The SJC’s decision goes into laudable detail explaining why this argument must fail. But the 93A counterclaim is another matter, the SJC held. Please note: The Regos raised 93A as a counterclaim, not a defense.

Fannie Mae argued that even if the 93A counterclaim was successful, it would not entitle the Regos to possession, only to monetary damages. Not so, contended the Regos: The court could deploy the equitable remedy of rescinding the foreclosure sale.

One of the organizations that responded to the SJC’s request for amicus briefs was Community Legal Aid, which stated that:

In certain cases, the equitable rescission of a foreclosure sale might not be the trial court’s remedy for violations of G.L.c. 93A. Nevertheless, the adjudication of different claims arising from the same facts supports both judicial economy and access to justice for low-income and elderly litigants who may be unable to advance claims independently.

Even if rescission is not on the cards and no right to possession is at issue any more, the Housing Court should retain jurisdiction, in other words. Of like mind, the SJC held:

“[U]nable to determine whether, in the context of the summary process action, the judge determined that the Regos’ G.L.c. 93A counterclaims and defenses did not entitle them to equitable relief affecting the right to possession, or whether he intended to consider that form of equitable relief, along with all other potential forms of equitable and monetary relief in the separate proceeding but erroneously concluded that he lacked the jurisdiction to do it.” (Emphasis added).

Of course, the Housing Court judge did, in fact, rule on the counterclaim, which tends to suggest that he had concluded that he had the jurisdiction to do so. Had he “erroneously concluded that he lacked the jurisdiction” he could have chosen a different course. But this absence of an express ruling on Fannie Mae’s jurisdictional argument led the SJC to sent the case back.

“All very interesting, I’m sure,” I hear you think, “but how does this affect me?”  Here’s how:

Landlords seeking possession should bear in mind that a tenant’s 93A counterclaim is an equitable defense.

Justin Sargent 6
Peter Vickery, Esq.

 

 

Issue more regulations, court tells agency

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?

Justin Sargent 6
Peter Vickery, Esq.

Boom! Security deposits get the full Alderaan

April 29, 2016:- Security deposits are supposed to help cover the cost of damage to the landlord’s property. Yesterday, security deposits themselves sustained damage on an Alderaan scale.

In its decision in Meikle v. Nurse (see my earlier post) the Supreme Judicial Court held that a landlord’s violation of the security deposit statute provides the tenant not only with a counterclaim but provides a defense to possession. In plain English, a defense to possession means the tenant gets to stay.

For many years, Massachusetts landlords wise to the ways of the law have known that any mistake handling the security deposit (e.g. failing to give the tenant a piece of paper stating the name of the bank holding the deposit  and the account number) could result in them paying the tenant multiple damages plus the tenant’s attorney’s fees. But yesterday’s decision means that a mistake gives the tenant the right not just to money but to remain in the landlord’s property. Not forever, of course: The tenant “does not enjoy that right in perpetuity,” the SJC states reassuringly. To avoid a tenancy in perpetuity the landlord need only bring “a second summary process action for possession after he or she has remedied the violation of the security deposit statute.”

So what does bringing a summary process action for possession ordinarily involve? Serving a new notice to quit; waiting either two weeks or a full rental period depending on the nature of the notice; completing the new summons and complaint and making sure it aligns perfectly with the notice to quit (on pain of dismissal if it does not); serving a new summons and complaint (with the attendant sheriff’s fees) at the right time, not too early and not too late (on pain of dismissal for premature or tardy filing); filing the summons and complaint (again, not too early and not too late on pain of dismissal); paying the court’s filing fee; appearing in court; being presented with the tenant’s list of interrogatories, which automatically postpones the trial for 10 days; prevailing at trial (if the stars are aligned); seeking a writ of execution; watching the judge grant the tenant a stay of execution; and then, when the first stay has expired, watching the judge grant another stay of execution, and so on. Not quite perpetuity, perhaps, but close. The line between ad nauseam and ad infinitum starts to get a bit blurry after a year or so.

Will this new decision discourage landlords from taking security deposits? One would think so, those who fall into the rational-economic-actor category at any rate. Without security deposits, how will these rational economic actors insure themselves against the risk of tenants damaging their property (bearing in mind that an increase in the risk involved in renting increases the cost of renting)? Applying some basic economics, perhaps landlords will respond to an increase in the cost by raising the [fill in the blank].

Justin Sargent 6
Peter Vickery, Esq.

Another campaign finance rule. KA CHING!

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.

SJC: unintentional housing discrimination unlawful

April 13, 2016:- From now on, developers can be sued for housing discrimination in Massachusetts even if they did not intend to discriminate and complied with all applicable laws.

In a major decision, the Supreme Judicial Court (SJC) held that “a disparate impact claim is cognizable even if a defendant who is a private owner adheres to statutory, regulatory, and contractual obligations.”  The case is Burbank Apartments Tenants Association v. Kargman and it is consistent with Justice Kennedy’s majority opinion in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.  Like SCOTUS, the SJC rationalized its decision by analogizing to employment law: “[W]e conclude from our employment discrimination precedent that… [the disparate impact] theory of liability is cognizable under G.L. c. 151B, §§ 4(6), (7), and (11).”

For my earlier post on the subject, click here.

Justin Sargent 6
Peter Vickery, Esq.

Free speech wins (four years after judge banned candidate from mentioning opponent’s name)

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.

Justin Sargent 6
Peter Vickery, Esq.

Lopsided landlord law (plus quiz)

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 peter@petervickery.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.

Justin Sargent 6
Peter Vickery, Esq.