Marijuana: respect for voters trumps supremacy clause

July 17, 2017:- Today the Supreme Judicial Court (SJC) held that where an employer fired an employee for her off-site use of marijuana, the employee may sue for handicap discrimination. The name of the case is Barbuto v. Advantage Sales and Marketing, LLC, and you can read it by clicking here. The decision does not sit easily with the Supremacy Clause of the Constitution of the United States, to put it mildly.

The case involves the Massachusetts anti-discrimination law, chapter 151B. Under 151B an employee who is a “qualified handicapped person” may seek “reasonable accommodations.” In this case, the employee asked for one particular accommodation, namely marijuana use. Faced with this request the employer demurred, arguing that marijuana use is a crime and, therefore, inherently unreasonable.

Certainly, in 2012 Massachusetts enacted the medical marijuana act. But the use of marijuana is illegal under the federal Controlled Substances Act, which Congress enacted and has not repealed. The SJC referred to this contradiction between state and federal law as an “unusual backdrop.” That is one way of putting it, I suppose.

Now, admittedly I am no judge and nobody asked me, but my starting point in resolving the contradiction would have been clause 2 of article VI of the Constitution of the United States, which provides:

This Constitution and the laws of the United States which shall be made in pursuance thereof… shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.

The clause means that a law passed by Congress becomes part of “the supreme law of the land.” That is why we call it the Supremacy Clause. Lest there be any doubt, the clause includes the proviso “any thing in the constitution or laws of any state to the contrary notwithstanding.”  If a State does not like a Federal law, the judges of that State may not repeal it.  Nullification is not an option.  I believe we fought a war about this.

However, the SJC held that respect for the supreme law of the land must take second seat to something else, something not referred to in the Constitution of the United States:

“To declare an accommodation for medical marijuana to be per se unreasonable out of respect for the Federal law would not be respectful of the recognition of Massachusetts voters, shared by the legislatures or voters in the vast majority of States, that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions.”

That is a very difficult sentence for me to understand.  Don’t get me wrong: I can read English, so I understand the words. I just do not understand how (with all due respect to the SJC) one can square that sentence with the plain language of the Supremacy Clause or with the body of precedent on the subject of field preemption.

After all, the Supremacy Clause is a straightforward answer to this simple question: Where there is a clear conflict between a federal law and a subsequent state law, which prevails? Federal law, says he Supremacy Clause. State law, says the SJC.  Why? Because it is better to ignore the federal law than fail to be “respectful” of the voters.

Perhaps this is one of those instances where the framers and ratifiers tacked on an exception using invisible ink, so that to the cognoscenti the Supremacy Clause actually concludes with the words “and the judges in every State shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding, except when they decide not to be.” Hold your copy of the Constitution up close, then at arms’ length. If that doesn’t work, try holding it up to the light.

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.

Peter Vickery, Esq. 413 549 9933

To the quipster go the spoils

Today’s Supreme Judicial Court decision in Massachusetts Electric Company v. Dept. of Public Utilities caught my eye not so much for its conclusion as for its citation to one particular source as authority, namely State House News. This seems to be somewhat of a trend, and not one that I welcome.

One issue in the case was the standard that the Department of Public Utilities (DPU) used in deciding whether three electricity providers had restored power promptly enough after the 2011 storms. In 2009 the Legislature enacted a statute that gave the DPU power to levy fines against companies that fell short of its “standards for acceptable performance emergency preparation and restoration of service.” The companies argued that the DPU should have applied the prudence standard, i.e. did their performance conform to “fair and prevailing utility practice,” rather than a mere reasonableness standard.

The SJC disagreed, pointing to the fact that if the Legislature had intended to establish a prudence standard it would have done so (“the Legislature is familiar with the prudence standard and knows how to direct the department to apply it in the regulation of public utilities”). But then, to bolster the point with legislative history, the Court went on to quote comments that State House News had included in its reports of the debate in the House of Representatives. One of the statements was from Representative Robert Rice, who said, according to State House News, that the bill would “put a knife over the heads of the utilities” and give the DPU “the muscle and teeth that was previously lacking.”

Lurid language of this caliber has a way of making it into news stories; that is one reason why politicians employ it. If you have ever been in politics you will know that memorable and quotable phrases help maintain your public profile and increase your chances of reelection. There is absolutely nothing wrong with striving for eloquence, or even just the occasional bon mot that will look good in ink. After all, persuading colleagues to support your bill and the qualified and registered residents of your district to vote for you is part of your job. But when judges use your quips to help discern the meaning of statutes, greater glory beckons, and herein lies an unfortunate incentive.

Construing an ambiguous statute entails divining the intent of the Legislature, and most judges (or rather all judges, I hope) would agree that the place to start is the statute itself. If other statutes use the same word or phrase, or if there are binding precedents in which appellate courts have construed it consistently, there is little danger that the judge will misunderstand the intent of the Legislature. But If the judge proceeds to look to extraneous sources for meaning, such as the words of individual legislators, as reported in the press, we face the risk that politicians will engage in “legislation by soundbite.”

Quoting politicians in judicial decisions encourages them to make misleading statements (as if they needed any encouragement) regarding the meaning of a given piece of legislation or a phrase therein. If your preferred definition fails to make it into the final version of the bill that both chambers enact and present to the Governor for signature, you are still in with a shot of influencing how the courts will construe it: Simply read a pithy phrase on the floor of the House in the hope that it will end up in the news.

Temptation of this nature is hard to resist, and who could fault a doughty advocate for succumbing to it. But that does not alter the fact that there are only two ways to legislate in Massachusetts: the ballot initiative and the Legislature. Under our Constitution legislating via the Great and General Court involves passage through the House and Senate followed by gubernatorial signature (or veto and override). Nowhere does the Constitution grant special privileges to the legislator with the catchiest quip.

Peter Vickery, Esq.