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.

Fighting dirty, or back down to earth in Belchertown

Recently I was co-counsel on a case that involved a pile of dirt in Hadley, Massachusetts. Our client (owner of said pile) kept track of how much earth-product he removed in order to stay on the right side of a local bylaw, which provides that if you remove more than 25 cubic yards in any one year you need a permit. So he recorded each load, and stopped loading before he reached the legal limit. He is an ordained bishop by the way.

The town’s zoning enforcement officer did not measure the pile so had no way of knowing how much earth the owner had removed: more than 25 cubic yards or less. He could have obtained a warrant; he chose not to. But he imposed a fine anyway, which the Zoning Board of Appeals (ZBA) upheld.

Fortunately, after a trial in Belchertown District Court, the judge ruled in favor of our client and annulled the ZBA’s decision. Here are the Findings and Judgment.

Take-aways:

  1. Zoning appeals often go to Superior Court. This one didn’t. The lead attorney, Michael Serduck, recommended District Court, which turned out to be a more expeditious and cost-effective route.
  2. Municipal employees, elected officials, and local volunteers work hard, but sometimes they make mistakes. Proving that they were mistaken takes time and money (often in short supply for small business owners) but sometimes it’s worth the fight.
Justin Sargent 6
Peter Vickery, Esq.

Petition by press release? Protected.

February 24, 2016:- The anti-SLAPP law (M.G.L. c. 231, §59H) allows defendants to file a special motion to dismiss if they are being sued based on their petitioning activities. The statute defines the term “petitioning”as including “any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding.”  Today the Appeals Court issued a decision that expands the scope of the anti-SLAPP law and contracts the reach of defamation law.

The case is Blanchard v. Steward Carney Hospital, Inc., and others.  The plaintiff sued for defamation over statements that one of the defendants — William Walczak, the president of a hospital being investigated by several regulatory agencies — made to the Boston Globe. The defendant filed an anti-SLAPP motion arguing that his comments constituted “petitioning activity.” The Appeals Court agreed, and dismissed the defamation claim regarding the statements to the newspaper.  

What makes the case noteworthy is one of the two reasons the Court gave for its decision (to keep this post short I won’t go into the other one). The Court held that in the context of the public pressure on the Department of Mental Health (DMH) to close a unit in the hospital,

Walczak’s comments… qualify as protected activity because the investigation was ongoing, and it is clear that DMH, which was regularly on site at the hospital, would be paying attention, or at least would have access to the [Globe] articles. If Walczak did not respond, there would have been a serious risk that the situation would be reported in a manner that did not take into account the [the hospital’s] perspective.

This is not an altogether novel interpretation of the anti-SLAPP law. In 2005 the Appeals Court held that “petitioning activity” included statements to the media where the speaker, the widow of a firefighter, was lobbying the Legislature to pass special legislation granting her survivor’s benefits. Wynne v. Creigle, 63 Mass. App. Ct. 246 (2005). Her anti-SLAPP motion to dismiss a defamation claim succeeded because her public statements were “sufficiently tied to and in advancement of her petition.”

The rationale in Wynne v. Creigle seemed to be that the defendant was lobbying the Legislature (a petitioning activity) via the media. Legislators, after all, are supposed to be democratically accountable and responsive to the voters.

Today’s decision goes further. It means that the anti-SLAPP law now insulates from suit statements a speaker makes to the media where the initial target audience is the public but the ultimate audience is an unelected government agency, on the apparent rationale that the agency is amenable to public pressure. In short, this case places a new hurdle in the way of actions for defamation where the speaker who gave the media an allegedly defamatory statement (e.g. by issuing a press release) was using the media as a conduit to a regulatory agency.

Justin Sargent 6
Peter Vickery, Esq.

Appeals Court vacates triple-rent award

February 23, 2016:-  A case that started in the Western Division Housing Court in 2009, Clark v. Leisure Woods Estates, Inc., has provided some clarity as to how much money a tenant can get from a landlord under M.G.L. c. 186, S. 14. Judge Robert G. Fields found that the landlord violated the quiet-enjoyment provision in two different ways and awarded triple damages for each violation, i.e. two separate triple-damage awards. The Appeals Court vacated one of the two triple-damages awards as duplicative, holding that

only one triple rent award is available in a single proceeding under S. 14, no matter how many ways the landlord interferes with the tenant’s quiet enjoyment.

In a footnote, the Court noted that the statute “prohibits five separate categories of landlord misconduct” of which the Leisure Woods case involved just one (interference with quiet enjoyment).  The decision “does not address a situation in which the landlord violated two or more categories.” So if landlords violate the right of quiet enjoyment and violate S. 14 in other ways as well (e.g. cross-metering, failing to provide adequate heat) they still face the threat of having to pay multiple damages for those other violations in addition to the quiet-enjoyment violation. But at least they are only liable for one triple-damage award per category.

In a nutshell, the decision limits the exposure of landlords somewhat, and reduces the leverage of tenants’ counsel concomitantly. Tenants who show 57 varieties of violation of their right to quiet enjoyment should not expect 57 separate awards of triple damages.

Justin Sargent 6
Peter Vickery, Esq.

Older, white man wins discrimination case

Springfield, Mass. :- It doesn’t happen every day, or very often at all for that matter, so this case merits a mention. An employer terminated a 64-year old, White, male employee in favor of hiring a “younger more aggressive sales person who spoke Spanish and understood Latino culture.”  The older White man sued for age and ethnicity discrimination and won.

bateman cartoon

A hearing officer at the Massachusetts Commission Against Discrimination (MCAD) ordered the company to pay $11,100.00 in lost wages and $5,000.00 for emotional distress.  You can read the full decision (issued January 20, 2016) here.

After-acquired evidence? Status quo, says SJC

February 4, 2016:- Employment lawyers have been wondering, “Will Massachusetts adopt or reject the after-acquired evidence doctrine?” Today we have the answer: No.

If an employer terminates an employee for no cause and later discovers a reason that would have provided grounds for discharge, later on in court may the employer rely on that after-acquired evidence as justification? In states with the after-acquired evidence doctrine, the answer is yes. We are not one of those states. But we do not positively not have the doctrine either, if you see what I mean.

In announcing its decision in EventMonitor, Inc. v. Leness, the Supreme Judicial Court chose not to reach the issue of after-acquired evidence. So for the time being, the doctrine is neither accepted nor rejected.

I will post a more detailed account shortly.

Justin Sargent 6

Churchill victorious in 1945 after all

In 1945, when it became clear that Winston Churchill and the Conservative Party had lost the general election, Churchill’s wife suggested that the loss might be a blessing in disguise. Churchill replied, “At the moment it seems quite effectively disguised.”

But there is no disguising the blessing in a recent Rule 1:28 summary decision by a panel of the Appeals Court with the fortuitous docket number 1945, in which a lawyer named Churchill won a noteworthy victory. The panel affirmed a jury award of $424,000.00 in favor of Attorney Churchill’s client, Dennis Craig, and — as icing on the blessed cake –granted Mr. Craig the costs and fees he incurred in defending the appeal .

The case is Craig v. Sterling Lion, LLC, and it concerned the Wage Act. The employee, Mr. Craig, sued his former employer for unpaid wages, and the jury found in his favor, awarding him treble damages and attorney’s fees.

The employer, Sterling Lion, LLC, appealed, arguing that (1) before starting his lawsuit Mr. Craig had failed to file a Wage Act complaint with the Attorney General, and (2) the trial judge had not given the jury an instruction about joint ventures. Sterling Lion hoped to characterize Mr. Craig as a joint venturer (similar to a partner) not an employee and, therefore, not entitled to the protection of the Wage Act.

The three-justice panel of the Appeals Court disposed of the first point by noting that during the trial the employer’s attorney told the judge that Sterling Lion would not be raising the issue as a defense and stipulated that the Attorney General had issued Mr. Craig with a right-to-sue letter. As for the second point regarding joint venture, when he gave evidence at trial Sterling Lion’s principal testified that Mr. Craig had not been a joint venturer or partner. In view of that testimony, the justices decided that the trial judge was correct in not giving the joint-venture instruction.

This Churchillian success story should remind Massachusetts employers of the dangers both of misclassifying employees and failing to pay owed wages.

Peter Vickery July 2012
Peter Vickery, Esq.

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

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.

Justin Sargent 1
Peter Vickery, Esq.

Boston’s $11 million payout: mission accomplished

I see that the declared mission of City of Boston’s treasury department is “to collect and transfer all funds due to the City.” Well, as a result of a generous jury decision, the treasury department is going to have to transfer funds in the amount of $11 million to one of its own employees, senior administrative assistant Chantal Charles. Congratulations to all concerned — parties, counsel, and jury — for demonstrating that whatever happens in Washington, D.C., at least local government can accomplish its mission.

mission accomplished

On a completely different subject, here’s a guide to public choice theory.

Court to rule on freedom of political speech in Massachusetts

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).

chelmsford PB with caption
Colleen Stansfield: seated, left
roland van liew
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?

No ambiguity in today’s Appeals Court ruling

If I had an award to give for unambiguous judicial writing, it would go to Associate Justice Janis M. Berry whose opinion in Ellis v. DIA is well worth reading. It is as clear as something large seen from very close up by a person with perfect vision.

The plaintiff, James Ellis, represents workers compensation claimants. To help injured workers find lawyers to steer them through the workers compensation system, the law allows claimants to collect their legal fees in addition to compensation. Before signing off on lawyers’ fees, the administrative judges at the Department of Industrial Accidents (DIA) have to review the bills. The reasons for this requirement are too obvious to state. But Attorney Ellis claimed that DIA judges have no right to scrutinize his bills.

Attorney Ellis has visited the Court of Appeals quite often, it seems, but his latest sashay was too much for Justice Berry, who described it as “just one small part of a pattern of Ellis’s frivolous litigation in advancing legally unfounded claims on appeal.”  With regard to the law’s provision of legal fees for claimants, she wrote that although important it is “not carte blanche to an open credit line for an attorney to draw upon without validity.”

The decision ends by calling the appeal “frivolous and worthy of sanctions” followed by words that no attorney ever wants to read: “[W]e refer this case to the Board of Bar Overseers.”

Clear enough?

justice janis m berry
Associate Justice Janis M. Berry

New regulations for ballot law commmission

The State Ballot Law Commission (of which I am a member) is proposing a new set of regulations that, if adopted, would govern the body’s adjudicatory proceedings. To read them click here.

To comment, you can either show up at the public hearing, which will be held in One Ashburton Place (17th floor), Boston, at 10:00 a.m., September 8, or file a written submission by noon that day.

For any of my Legislative Drafting students who happen to be reading, please note that this approach, called notice-and-comment rulemaking (for obvious reasons) is how agencies are supposed to operate: First, determine the extent of the agency’s constitutional and statutory authority; second, draft regulations consistent with that authority; third, publish them for public comment; fourth, meaningfully review the comments; and, finally, only then adopt the regulations.

SBLC_June 13 2014
State Ballot Law Commission

Sometimes agencies act in a more de haut en bas manner, unilaterally adopting polices and practices without the rigmarole of notice and comment. Keep an eye out for this sort of behavior. With a few informal guidelines here and a handful Dear Colleague letters there, an agency gradually becomes less and less accountable, we inch further away from the rule of law, and we lose a little more of the “self” part of self government. Efficiency is a virtue, but not the only one. Although time-consuming, the notice-and-comment process is worth the effort.

We Owe How Much??? New Wage Act Decision from Appeals Court

August 5, 2015:– How much could an employer end up paying for violating the anti-retaliation provisions of the Wage Act, M.G.L. c. 149, §§148A and 150? Much more than you might expect.

Today’s decision from the Appeals Court says that “an employee terminated by an employer for asserting a wage right may recover damages stemming from the termination… [which] may include earnings from the date of termination up to trial.” That means the employer is liable not only for what it should have paid prior to termination but also for everything the employee would have earned during the years between termination and trial, minus whatever the employee actually earned elsewhere in the meantime. That could be a sizable sum.

And then, of course, the court can treble that amount, which is what happened in Wessel v. Mink Brook Associates. At the time of firing, the employer owed the employee $3,750.00 for lost wages and unused vacation time. The final damage award, factoring in the termination-trial period: $187,111.38.

In a nutshell, if an employee rightfully complains about owed wages, and the employer responds by firing her, the employer better hope that the fired employee finds another (highly paid) job, and fast. Even better, at the risk of stating the obvious, employers should refrain from retaliating against employees to whom they owe wages.

Pro portrait
Peter Vickery, Esq.

When sex discrimination is OK

In some circumstances an employer may discriminate on the basis of sex without breaking the Massachusetts anti-discrimination law. As justification, the employer needs to show that being a woman — or, indeed, a man — is a bona fide occupational qualification (BFOQ). In other words, the very nature of the particular job requires a woman not a man, or a man not a woman.

In Pugsley v. Boston Police Department the Supreme Judicial Court (SJC) explained what sort of evidence will not pass muster when using sex as a BFOQ. The plaintiff, Sean Pugsley, had scored very well on the police academy exam but the Boston Police Department did not pick him. It did, however, hire women who had scored less well than Mr.Pugsley because they were, well, women.  The department’s reason was statistical disparity: About 13% of the officers were female whereas “the number of females involved in police contact as a result of alleged criminal activity” was about 18%.

Evidence of this caliber will not suffice. The SJC stated that “statistical disparities, without more, will generally be insufficient to support a BFOQ” (emphasis added).  What sort of “more” can an employer not do without? In a footnote the Court suggested that employers should target their recruitment efforts more carefully before resorting to the blunt tool of overt sex discrimination. So statistics plus evidence of more subtle, less obvious efforts to discriminate, are probably OK.

One aspect of the statistical disparity that did not come up was the corollary of the fact that only 18% of those individuals who find themselves interacting with Boston police officers for “alleged criminal activity” are women. Therefore 82% are male. If the statistics for Boston resemble those for Massachusetts as a whole and women and men each make up about 50% of the population, an objective observer* would expect the rates of criminal activity to be 50:50 as well.

So it is clear from the statistics that female crooks are offending with impunity while their male counterparts are being deliberately targeted because of the anti-male bias of Boston’s overwhelmingly male police force, or are suffering from the form of discrimination known as disparate impact. After all, what other possible explanation could there be?

* From a different dimension

Peter Vickery, Esq.
Peter Vickery, Esq.

Money, money, money, etc.

Is it an appropriations bill or a money bill? That is the constitutional question currently before the Supreme Judicial Court (SJC) as the result of a disagreement between the two chambers of the Massachusetts Legislature. The dispute concerns the state budget and taxes.

The origination clause in the Massachusetts Constitution says that money bills have to originate in the House of Representatives, not in the Senate. But when the House passed the general appropriations bill for 2016, the Senate noticed two sections about tax expenditures that (in the Senate’s opinion) provided an opportunity to change the tax laws. Not so, said the House, and asked the SJC to provide an advisory opinion on whether the Senate’s action violated the origination clause.

When the SJC asked for amicus briefs, I filed one. This news story in The Republican/Masslive describes the issue and mentions my brief.

Peter Vickery, Esq.
Peter Vickery, Esq.

New Real Estate/Employment Law Decision from SJC

June 3:- Can a real estate brokerage classify a salesperson as an independent contractor without breaking the law?

A review of the independent contractor statute (Chapter 149, Section 148B) would suggest not. According to that statute a worker is an employee, as opposed to an independent contractor, unless the employer can show that the worker’s services are “performed outside the usual course of the [employer’s] business.”

By definition, the work of selling real estate is within the usual course of the real estate business. Not even the most flexible mental gymnast could persuasively describe the work of a real-estate salesperson as falling outside the usual course of a real-estate businesses’s business, at least not with a straight face.

But today in Monell v. Boston Pads, LLC,  the Supreme Judicial Court (SJC) held that yes, a real-estate salesperson may indeed work as an independent contractor, a decision that should come as a relief to those in the real estate business.

The reason for the Court’s decision has to do with the interplay of two statutes, and a canon of statutory construction. One statute is the independent-contractor statute, which deals with employment in general. The other deals specifically with real-estate licensing (Chapter 112, Section 87R) and expressly provides that salespersons may affiliate with brokers as either employees or independent contractors. If the independent-contractor statute controls, then salespersons must be employees, whether they like it or not. If the real-estate licensing statute controls, they can be independent contractors.

To resolve the conflict, the SJC relied on the principle that “a specific statute controls over the provisions of a general statute.” In this case, the more specific statute is the one that governs the real-estate business, which, therefore, prevails over the general independent-contractor statute.

As I mentioned in a previous post on this subject, in Massachusetts the independent contractor remains on the endangered list but is not yet extinct.

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Peter Vickery, Esq. 413 549 9933

Tips & Taxis

Tips and taxis (or taxi drivers, to be precise) provide the subject matter for my latest employment-law article in Business West magazine.

Does the law allow a restaurateur to establish a no-tipping policy? And are Boston taxi drivers really employees even if their lease agreements describe them as independent contractors?

To find out, just click here.

Pro portrait
Attorney Peter Vickery

Magna Carta: Why should we care?

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

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

At Runnymede, at Runnymede,

Your rights were won at Runnymede!

No freeman shall be fined or bound,

Or dispossessed of freehold ground,

Except by lawful judgment found

And passed upon him by his peers.

Forget not, after all these years,

The Charter signed at Runnymede.

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

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

Massachusetts seal 1775
Massachusetts Seal, 1775

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

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

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

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

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

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

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

In plain English? No taking without just compensation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

At Runnymede, at Runnymede,

What say the reeds at Runnymede?

The lissom reeds that give and take,

That bend so far, but never break,

They keep the sleepy Thames awake

With tales of John at Runnymede.

At Runnymede, at Runnymede,

Oh, hear the reeds at Runnymede:

“You mustn’t sell, delay, deny,

A freeman’s right or liberty.

It wakes the stubborn Englishry,

We saw ’em roused at Runnymede!

When through our ranks the Barons came,

With little thought of praise or blame,

But resolute to play the game,

They lumbered up to Runnymede;

And there they launched in solid line

The first attack on Right Divine,

The curt uncompromising “Sign!”

They settled John at Runnymede.

At Runnymede, at Runnymede,

Your rights were won at Runnymede!

No freeman shall be fined or bound,

Or dispossessed of freehold ground,

Except by lawful judgment found

And passed upon him by his peers.

Forget not, after all these years,

The Charter signed at Runnymede.

And still when mob or Monarch lays

Too rude a hand on English ways,

The whisper wakes, the shudder plays,

Across the reeds at Runnymede.

And Thames, that knows the moods of kings,

And crowds and priests and suchlike things,

Rolls deep and dreadful as he brings

Their warning down from Runnymede.

Emergency Regulation on Crowdfunding: Public Hearing

If you are thinking of using crowd-funding to help your business take wing, please note:  Massachusetts is considering a regulation that would define how much money you can raise, over what period, and from whom. Earlier this year the Commonwealth’s securities division adopted an emergency regulation on this subject, and — with an eye to crafting a more permanent version — is currently accepting comments. In addition to the temporal, geographic, and dollar-amount limits, the regulation requires that entrepreneurs publish certain “risk disclosures.”

To its credit, the division’s official request for public comment poses questions about the relationship of the state regulation to its federal equivalents and the potential for Massachusetts collaborating with other states. Given the fact that the emergency regulation is already on the books and that the state securities division is on the verge of promulgating the updated version, I suppose it’s too late to call the whole thing off. But small-business owners may well wonder, do we really need state-level rules and an interstate compact to further regulate (and hamper) this particular online activity?

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Peter Vickery, Esq.

A pubic hearing is scheduled for Tuesday, March 24, at 10:00 a.m. in Boston.  In the meantime, if you have an interest in building businesses through crowd-funding, I recommend that you (1) take a look at the mandatory Small Business Impact Statement (scroll down past the public hearing notice) which states that the regulation’s purpose is to “foster job creation by helping small and early-stage Massachusetts companies find investors and gain greater access to capital with fewer restrictions; (2) read the regulation; and then (3) ponder the compatibility of points (1) and (2).