Pension Reform Update November 2011

The 3rd and final (or so we are all told) phase to pension reform has been signed by the Governor and is set to take effect in 90 days. The legislation, “Chapter 176 of the act of 2011” can be found here. S. 2065, “An Act Providing For Pension Reform and Benefit Modernization” includes the following provisions from the states press release:

The third phase of pension reform includes:

  1. Defined benefit system: The legislation protects the existing defined benefit system by making it more equitable and sustainable.
  2. Increased retirement age: The legislation incorporates the Governor’s proposal to increase the retirement age for virtually all state workers, reflecting the fact that people are living and working longer than when the retirement ages were set in state law in the 1950s and 1960s. This change will more closely align the state system with the retirement ages already set by the federal government for Social Security benefits.
  3. Eliminates early retirement subsidies: The current system provides an incentive to retire before reaching maximum retirement age, as the increase in benefits resulting from additional years of service is less than the benefit of additional years of pension. The legislation eliminates this incentive.
  4. Savings. These reform measures will generate over $5 billion in pension funding savings over 30 years, including an estimated $2 billion for cities and towns. These savings will help address the state’s long-term liabilities and reduce the length of the state’s pension funding schedule by three to five years.
  5. Anti-spiking. The legislation introduces an anti-spiking rule, limiting the annual increase in pensionable earnings to no more than 10 percent of the average pensionable earnings over the last two years. This provision would not apply to bona fide promotions or job changes. The legislation also bases pension calculations on the average salary over five years instead of three.
  6. Pro-rates benefits based on employment history. The retirement allowance for new employees who serve in more than one group will be pro-rated, taking into account the number of years of service in each group. Pro-rating prevents windfalls for people who have only a short period of service in a group with higher benefit levels at the end of their career.
  7. COLA. The legislation includes a COLA provision which increases the base salary on which retirees receive a cost-of-living increase from $12,000 to $13,000.
  8. Double Dipping. The legislation eliminates the right to receive a pension while receiving compensation for service as an elected official in the same position unless one year has passed from the end of the previous elected term.
Posted in General, Public Employee Retirement Law | Leave a comment

“Evergreen” Clause Legislation Passed by House and Senate 11/2011

Since last years SJC case Boston Housing Authority v. National Conference of Firemen and Oilers, Local 3 458 Mass. 155 (2010) rejected the states use of the so called “Evergreen clause” there has been a ton of confusion as parties to the agreements try to work around the decision.

The Massachusetts House of Representatives passed House bill H3789 which would close the preexisting loophole the case exposed, and on Thursday the Senate passed their version. The final version will get passed to the Governors desk where he has 10 days to sign it.

The original case created controversy when it negated the “evergreen” clause which allowed for a contracts provisions to survive the life of the contracts. The issue however was that the clause conflicted with statute. The case in part stated ” We begin with the statute that is integral to the disposition of the present matter. General Laws c. 150E, § 7 (a), which governs collective bargaining between public employees and public employers, provides, in relevant part: “Any collective bargaining agreement reached between the employer and the exclusive representative shall not exceed a term of three years.” See Boston Teachers Union, Local 66 v. School Comm. of Boston, 386 Mass. 197 , 203-204 (1982) (G. L. c. 150E, § 7, “authorizes collective bargaining agreements for up to three years’ duration”).

General Laws c. 150E, § 9, states that “nothing contained herein shall prohibit the parties from extending the terms and conditions of such a collective bargaining agreement by mutual agreement for a period of time in excess of the aforementioned time.” This provision is wholly consistent and in accordance with G. L. c. 150E, § 7 (a), in that the duration of a CBA shall not exceed three years, but once that fixed term has expired, the parties are free to enter into a subsequent agreement extending the prior terms and conditions of their agreement, thereby maintaining the status quo while negotiations for a new CBA are ongoing. See, e.g., Gustafson v. Wachusett Regional Sch. Dist., supra at 806-807 (bridge agreement between parties preserved terms of prior collective bargaining agreement until successor agreement ratified).

As we have stated, the MOA expired according to its fixed term on March 31, 2004. In light of our conclusion that the evergreen clause was invalid because it violated the clear mandate of G. L. c. 150E, § 7 (a), the provisions of the parties’ bargaining agreement did not remain in full force and effect until such time as a new agreement was signed. It follows that the grievance and arbitration provision lapsed when the MOA expired. The arbitrator, therefore, exceeded his authority in ordering the BHA to reinstate the firemen because he had no jurisdiction to arbitrate Local 3’s grievance in the first instance. Moreover, by mandating compliance with the minimum staffing provision set forth in “Attachment A,” the arbitrator required the BHA to extend the provisions of the MOA past three years in violation of § 7 (a).

4. Conclusion. The judgment is reversed, and this case is remanded to the Superior Court for entry of an order vacating the arbitration award. So ordered.”

Attorney Ronald A. Sellon

Posted in General, Mass. Labor Law News & Cases | Leave a comment

SJC: Sex Offender Still Entitled to Hearing Under G. L. c. 6, § 178L (1) Despite Not Attending it Themselves

Recently the SJC ruled in JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 941 vs. SEX OFFENDER REGISTRY BOARD 460 Mass. 336 (2011) that the Sex Offender Registry Board lacked the authority to declare that a sex offender had waived his right to a hearing. The board had argued that a party had requested a classification hearing and his attorney was present at that hearing had waived the right to such a hearing by failing to appear himself without good cause. However the court disagreed and stated that the Legislature specified that such a hearing is waived only when the sex offender does not timely request one, leaving out whether they were required to attend themselves. The court reasoned that by not attending the hearing they run the risk of adverse evidence being submitted without their opposition, however the hearing must still occur if requested.

The court in deciding stated “Sex offenders have a constitutionally protected liberty and privacy interest in avoiding registration and public dissemination of registration information” that arises from their classification, and therefore, they are entitled to procedural due process in establishing their classification. Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90 , 100 (1998). See Doe v. Attorney Gen., 426 Mass. 136 , 149 (1997) (Fried, J., concurring) (registration “is a continuing, intrusive, and humiliating regulation of the person himself”). Due process requires that, where a sex offender challenges his classification, the board bears the burden of justifying that classification by a preponderance of the evidence at an evidentiary hearing at which an offender has the right to present evidence and cross-examine witnesses, and after which the hearing examiner must make “specific, written, detailed, and individualized findings” supporting the board’s final classification. Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., supra at 91, 98, 102-104.

In 1999, the Legislature repealed the existing statute and enacted the present sex offender registry statute to provide more adequate protection of procedural rights. See St. 1999, c. 74, § 2. See also Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768 , 775-776 (2006); Roe v. Attorney Gen., 434 Mass. 418 , 419, 423 (2001). As a result, a sex offender is now entitled by statute to request an evidentiary hearing to challenge the board’s recommended classification, to be represented by counsel at that hearing and to have counsel appointed if he is indigent, and to put the board to its burden to prove the appropriateness of its recommended classification by a preponderance of the evidence. G. L. c. 6, § 178L.
Under G. L. c. 6, § 178L (1), a sex offender waives these due process rights by failing timely to request a classification hearing; the statute provides no other way in which a sex offender can waive the right to a hearing. The board, however, has promulgated a regulation, 803 Code Mass. Regs. § 1.13(2), providing that a sex offender who has invoked his due process rights by requesting a hearing waives his right to that hearing by failing to appear without good cause.

The board claims that this regulation is a valid exercise of its rule making authority pursuant to G. L. c. 6, § 178D, which provides that “[t]he board shall promulgate rules and regulations to implement the provisions of sections 178C to 178P, inclusive.” We disagree. Because we have recognized and the Legislature has acted to protect the constitutional rights of sex offenders who face classification determinations, and the Legislature provided for waiver of these due process rights only where a sex offender did not request a hearing, we conclude that 803 Code Mass. Regs. § 1.13(2) is not in harmony with the legislative mandate and is ultra vires. See Commonwealth v. Maker, 459 Mass. 46 , 50 (2011) (regulation requiring level two or three sex offenders who were incarcerated during classification to report in person to local police department within two days of being released from custody was ultra vires, where nothing in statute authorized board to create new registration requirements); Moot v. Department of Envtl. Protection, 448 Mass. 340 , 352-353 (2007), S.C., 456 Mass. 309 (2010) (regulation exempting landlocked tidelands from licensing requirements that applied to uses or structures on tidelands was ultra vires because it relinquished Department of Environmental Protection’s obligation under applicable statute to protect public’s rights in tidelands).

We have held that a criminal defendant who has moved to suppress evidence but voluntarily fails to appear at the suppression hearing does not waive the right to suppress evidence or to have a hearing, but may waive the right to be present at that hearing. See Robinson v. Commonwealth,445 Mass. 280 , 290 (2005). Similarly, we have long held that a defendant who voluntarily absents himself from his trial after it has begun does not waive his right to trial but, in the discretion of the judge, may waive his right to be present for the remainder of the trial. Id. at 287-288. See Commonwealth v. Flemmi, 360 Mass. 693 , 694 (1971). Just as the voluntary absence of these defendants does not waive the right to suppress unconstitutional evidence, the right to a verdict based on proof beyond a reasonable doubt, or the right, through counsel, to cross-examine prosecution witnesses and offer evidence in their own behalf, nothing in the sex offender registration statute or the Legislature’s general grant of rule making authority suggests that a sex offender who invokes the right to a classification hearing but voluntarily fails to appear at the hearing has waived the right to detailed written findings justifying the board’s final risk classification by a preponderance of the evidence or the right, through counsel, to present evidence or challenge the board’s evidence at the hearing. We recognize that the potential consequences arising from a conviction are greater than those arising from classification as a sex offender, and that the latter is civil, not criminal, but a constitutionally protected liberty interest is at issue in both proceedings. See Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90 , 100 (1998).

We agree with the board that a sex offender reasonably may suffer adverse consequences arising from the failure to appear at a classification hearing, but we do not agree that the denial of a right to a hearing may be among those consequences. By voluntarily failing to attend a classification hearing, the sex offender loses the ability to assist his attorney in challenging the classification, to testify at the hearing, and to listen to the evidence that will determine his classification. Robinson v. Commonwealth, supra at 290. But the regulation allows the board, without any findings and without judicial review, to assign a risk classification to a sex offender who voluntarily fails to appear at the hearing. Like the judge below, we are “deeply troubled” by this consequence, because we have emphasized the importance of detailed written findings, guided by the factors in G. L. c. 6, § 178K, to ensure that “close attention has been given to the evidence as to each offender and that the classification for each is appropriate.” Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., supra at 102. This regulatory waiver is not necessary to the administration of the board’s classification procedure. The board may offer its documentary evidence and call witnesses just as it would if the sex offender were present, and the sex offender’s attorney may cross-examine these witnesses and offer evidence on the sex offender’s behalf.

The Legislature acted carefully to protect a sex offender’s due process rights, and declared that a sex offender waives the right to a classification hearing only where the offender does not ask the board to be put to its burden to justify the classification. See G. L. c. 6, § 178L (1). We conclude, therefore, that the board’s regulation exceeds the scope of its legislative mandate by declaring that a sex offender who has asked that the board be put to its burden and whose attorney is present and prepared to challenge the recommended classification waives the right to a classification hearing by failing to appear without good cause.

Conclusion. We vacate the dismissal of the complaint, and direct the entry of a judgment vacating the board’s classification and remanding the matter to the board for a classification hearing consistent with this opinion.
So ordered.”

Attorney Ronald A. Sellon

Posted in Constitutional Law, Criminal Law & Procedure, General | Leave a comment

Inevitable Discovery Used in Extra Jurisdictional Stop Found Valid by Appeals Court

The Appeals court recently opened the door a little wider for police to exercise some authority outside their jurisdictions. In COMMONWEALTH vs. STEVEN M. LAHEY 80 Mass. App. Ct. 606 (2011) the Appeals court found the extra jurisdictional stop by officer Jeff Zaccardi of Norton PD was valid even though it did not include the traditional reasons for doing so. There was notransferred authority, no fresh pursuit, no mutual aid requested or given prior to the stop, and no special police officer status. The court instead relied on inevitable discovery. This is new ground and big break-through for police.

The court, in discussing the suppression findings, stated “The evidence received at the two hearings upon the motion to suppress supported the following findings by the judge. On the evening of December 25, 2007, Norton police Officer Jeffrey Zaccardi escorted an ambulance to Sturdy Memorial Hospital in the neighboring town of Attleboro. After the arrival of the ambulance, Zaccardi drove his marked patrol car back toward Norton on Route 123, a two-lane east-to-west highway. As he traveled in the eastbound lane and still in Attleboro, he saw the defendant’s car coming westward in the eastbound lane. It was moving at an excessive speed, and passing westbound vehicles in a no-passing zone. Zaccardi swerved off the roadway to avoid a head-on collision.

Zaccardi then reversed direction, turned on his patrol car’s light bar and siren, and began pursuit of the defendant’s car. Simultaneously he radioed his Norton police dispatcher and directed him to notify the Attleboro police dispatcher to send assistance to the pursuit. Zaccardi saw the defendant attempt unsuccessfully to pass vehicles; oncoming traffic blocked that maneuver. He overtook the defendant after one-half mile and forced him to the side of the road.

Zaccardi walked to the defendant’s car, requested and received his keys and driver’s license, and instructed him and a passenger to place their hands on the dashboard. At that time, he could hear the siren of an approaching Attleboro cruiser. It arrived within approximately twenty to thirty seconds of Zaccardi’s receipt of the keys and license. Two Attleboro officers then conducted an investigation of the scene and collected evidence resulting in the eventual charges. Zaccardi briefed them about his observations and left within a few minutes. An Attleboro officer testified that their cruiser had reached the location of the stop in “[l]ess than one minute” after receipt of dispatch. Zaccardi testified, and the judge specifically found, that the purpose of his pursuit and detention of the defendant was the prevention of a fatal accident.

2. Suppression rulings. The defendant argued that Zaccardi, as a Norton police officer, lacked jurisdictional authority to stop the defendant in Attleboro; and that the substantial incriminating evidence resulting from the stop should be inadmissible because neither statutory nor common-law sources permitted an extraterritorial stop in these circumstances. In a detailed memorandum of decision, the judge agreed that neither statutory authorizations nor common-law doctrine appeared to validate the stop. She concluded, however, that the concept of inevitable discovery by lawful police action applied to the circumstances and provided a valid basis for admission of evidence yielded by the stop. She found that Officer Zaccardi had pursued the defendant in good faith for an urgent purpose of public safety and that his dispatch notices to the Attleboro police had assured their proper interception of the defendant.

Analysis. The defendant argues generally that the concept of inevitable discovery should not apply to extraterritorial police stops and specifically that the evidence in this case does not establish the inevitability of his discovery by the Attleboro police. He challenges also the judge’s denial of his request to renew his motion to suppress as an abuse of discretion.

1. Inevitable discovery. a. Standard of review. Most commonly, appeals from suppression decisions present constitutional questions of allegedly unreasonable search or seizure under the standards of the Fourth Amendment to the United States Constitution or art. 14 of the Declaration of Rights of the Massachusetts Constitution. Scores of cases establish the standard of review. The appellate court accepts the motion judge’s subsidiary findings of fact unless they are clearly erroneous. It conducts an independent review of her ultimate findings and conclusions of law. See, e.g., Commonwealth v. Scott, 440 Mass. 642 , 646 (2004); Commonwealth v. Colon, 449 Mass. 207 , 214, cert. denied, 552 U.S. 1079 (2007). Under this standard, the credibility and weight of testimony remain the province of the motion judge directly observing the witnesses. See, e.g., Commonwealth v. Gentile, 437 Mass. 569 , 573 (2002); Commonwealth v. Clark, 65 Mass. App. Ct. 39 , 43 (2005), and cases cited. Our case concerns not the usual constitutional contentions, but rather a statutory and common-law right of an individual to freedom from seizure and search by a police officer outside his lawful jurisdiction. The identity of the interests in freedom and privacy and the evidentiary consequences of suppression or admission of the resulting evidence lead us logically to apply the same standard of review to the defendant’s nonconstitutional argument against the action of the police.

b. Principle of jurisdictional limits. “A police officer lacks authority to act outside his or her jurisdiction, unless specifically authorized by statute or in the performance of a valid citizen’s arrest at common law.” Commonwealth v. Twombly, 435 Mass. 440 , 442 (2001). It is a statutory violation for a police officer to engage in extraterritorial action without valid authority. See Commonwealth v. LeBlanc, 407 Mass. 70 , 75 (1990); Commonwealth v. Hernandez, 456 Mass. 528 , 532 (2010). The appropriate remedy for unauthorized extraterritorial action is suppression of the resulting evidence. See Commonwealth v. Grise, 398 Mass. 247 , 253 (1986) (exclusion of evidence and dismissal of charges); Commonwealth v. LeBlanc, supra at 75 (police officer may not pursue motorist across his jurisdictional boundary for nonarrestable traffic violation; stop and arrest invalid; all resulting evidence of OUI suppressed); Commonwealth v. Savage, 430 Mass. 341 , 347 (1999) (exclusion of evidence resulting from Vermont State trooper’s arrest of intoxicated driver in Massachusetts); and Commonwealth v. Hernandez, supra at 532-533 (exclusion of evidence resulting from arrest of defendant by university campus police at place and for suspected conduct having no connection to university’s property, facilities, or activities). Several statutory provisions authorize extraterritorial police action in well defined situations. The motion judge specifically excluded their application in this case. She excluded also the common-law exception for a permissible citizen’s arrest and the constitutional allowance for the police exercise of the community caretaker function in circumstances of a public safety emergency.

c. Inevitable discovery. While an unauthorized extraterritorial stop is a statutory violation, Commonwealth v. LeBlanc, 407 Mass. at 75, and while inevitable discovery is a corollary of constitutional law, Commonwealth v. O’Connor, 406 Mass. 112 , 113 (1989), no principled distinction bars their blended application to the same case. The remedy of exclusion has worked as a deterrent and sanction against official violation of statutory authority. See Commonwealth v. Upton, 394 Mass. 363 , 367 n.4 (1985), and cases cited; Commonwealth v. Hernandez, 456 Mass. at 532. In Commonwealth v. LeBlanc, supra, the court reasoned that the exclusionary rule, as a constitutional standard, applied to an unauthorized extraterritorial stop because “[t]he requirement that a police officer have lawful authority when he deprives individuals of their liberty is closely associated with the constitutional right to be free from unreasonable searches and seizures.” Accord Commonwealth v. Hernandez, supra. As a matter of rational and consistent doctrine, if the standard of lawful inevitability will excuse a constitutional violation of interests of freedom or privacy, then it will excuse also a statutory violation of those same interests.
In his original motion to suppress, the defendant invoked the protection of art. 14 of the Declaration of Rights. Under that provision, Massachusetts courts enforce a more restrictive standard of inevitability than does the Fourth Amendment decisional law. See Commonwealth v. O’Connor, supra at 117. The Commonwealth must prove by a reasonable preponderance of the evidence the facts “bearing on inevitability”; and must demonstrate that discovery by lawful means was “certain as a practical matter.” Ibid. See Commonwealth v. Perrot, 407 Mass. 539 , 546-547 (1990); Commonwealth v. DiMarzio, 436 Mass. 1012 , 1013 (2002). “The certainty of discovery must exist at the time of the unlawful seizure, not develop as a result of circumstances occurring thereafter.” Commonwealth v. Ilges, 64 Mass. App. Ct. 503 , 514 (2005), citing O’Connor, supra at 117 n.4. Finally, the Commonwealth must show that the police have not acted with bad faith to accelerate the discovery of evidence helpful to the prosecution or harmful to the defendant. See Commonwealth v. O’Connor, supra at 118-119; Commonwealth v. Sbordone, 424 Mass. 802 , 810 (1997); Commonwealth v. Ilges, supra. The motion judge’s findings should be specific and detailed. Commonwealth v. O’Connor, supra at 117.
In this instance the motion judge made the following specific subsidiary findings on the basis of the credibility of the two police witnesses. The defendant at excessive speed drove into an oncoming lane and forced the Norton police cruiser to drive off the road in order to avoid a head-on collision. The Norton officer began pursuit and simultaneously directed his dispatcher to inform the Attleboro police of the chase and the need for assistance. He followed the defendant’s car along a single, narrow, two-lane road on which the speed limit approximated forty miles per hour and on which oncoming traffic obstructed the defendant’s attempts to accelerate and pass vehicles in his own lane. The officer forced the defendant to pull over after a distance of one-quarter to one-half mile. He took the defendant’s keys and driver’s license. As he did so, he heard the siren of an approaching Attleboro cruiser. It arrived within twenty to thirty seconds of the first sound of the siren. The Norton officer undertook no arrest or investigation, turned the keys and license over to the Attleboro officers, briefed them, and left. The uncontradicted testimony of the Attleboro police witness was that his cruiser reached the site in less than a minute after receipt of the dispatch information. We cannot reject those credibility determinations of subsidiary facts as clearly erroneous.

In turn, those findings establish, as an ultimate fact, the practical certainty of the discovery of the defendant by the Attleboro police. Officer Zaccardi’s dispatch communications were entirely lawful and desirable, if not imperative, as action for public safety. Attleboro police would know of the location and direction of a conspicuously erratic driver heading westward into Attleboro on a single road. Traffic along the roadway hemmed him into his lane and curtailed his speed. The Attleboro police were stationed within a minute of the defendant’s location. See United States v. Stilling, 346 Fed. Appx. 458, 460 (11th Cir. 2009) (inevitable discovery applicable where police officer stopped defendant’s vehicle without probable cause, but another officer in pursuit had probable cause).

Finally, again as a matter of credibility supported by plausibility, the motion judge accepted the good faith of Officer Zaccardi’s motivation, not to arrest the defendant and gather evidence against him, but rather to remove him from the highway and prevent a fatal accident. Under the governing standard of review, the motion judge’s subsidiary findings are free of clear error and her ultimate findings and conclusions of law satisfy the requirements of the concept of lawful inevitable discovery imposed by art. 14. Zaccardi acted to avert a grave highway accident. His lawful dispatch communications set in motion the encounter of the defendant by the Attleboro police. The governing formulation calls for discovery to a degree of practical certainty, not absolute certainty. The evidence satisfies that test.”

Attorney Ronald A. Sellon

Posted in Criminal Law & Procedure, General | Leave a comment

G.L.c.6,§178K(2)(e) Found Unconstitutional as Applied to Sex Offender

Recently the SJC ruled in JOHN DOE vs. POLICE COMMISSIONER OF BOSTON 460 Mass. 342 (2011). In the case, the plaintiff, was a level three sex offender currently residing in a rest home. Pursuant to a statute enacted by the Legislature in 2006, a level three sex offender who “establish[es] living conditions within, move[s] to, or transfer[s] to” a long-term care facility such as a rest home commits a crime. See G. L. c. 6, § 178K (2) (e), inserted by St. 2006, c. 303, § 6 (§ 178K [2] [e], or the statute). The plaintiff asked the court to declare § 178K (2) (e) unconstitutional as applied to him. The court concluded that the statute infringed on the plaintiff’s protected liberty and property interests and violated his right to due process; because the statute fails to provide for an individualized determination that the public safety benefits of requiring him to leave the rest home outweigh the risks to the plaintiff of such a removal, the statute is unconstitutional as applied to the plaintiff. The simple answer to this is for the Legislature to simply insert that requirement.

The court in ruling stated “Effective December 20, 2006, § 178K (2) (e) subjects to criminal penalties any level three sex offender who moves to a rest home or other regulated long-term care facility. The statute provides:

“No sex offender classified as a level [three] offender shall knowingly and willingly establish living conditions within, move to, or transfer to any convalescent or nursing home, infirmary maintained in a town, rest home, charitable home for the aged or intermediate care facility for the mentally retarded which meets the requirements of the department of public health under [G. L. c. 111, § 71]. Any sex offender who violates this paragraph shall . . . be punished . . . . Prosecutions commenced hereunder shall neither be continued without a finding nor placed on file.” G. L. c. 6, § 178K (2) (e).

The statute applies uniformly to level three sex offenders; it allows for no exceptions. Id.
The plaintiff asserts a number of arguments in support of his claim that, as applied to him, § 178K (2) (e) is unconstitutional. We need address only one: whether the prohibitions as to where the plaintiff may reside may be imposed absent an individualized determination that weighs the plaintiff’s liberty and property interests against the rights of the Commonwealth to protect vulnerable members of society.
The parties’ arguments are best understood in the light of our prior decisions discussing the sex offender registration scheme, and we therefore begin with a brief overview. The sex offender registration system applies broadly to those the statute defines as sex offenders, including those who have served their criminal sentences and those who have been found, following a trial, to be no longer sexually dangerous. See G. L. c. 6, §§ 178C-178K; G. L. c. 123A. Cf. Opinion of the Justices, 423 Mass. 1201 , 1225 (1996) (earlier version of sex offender registration statute “imposes an entirely new system of consequences — potentially extremely burdensome — only on persons who have satisfied all the punitive measures applied to them in connection with a previous conviction”). We have determined that the act of registering, “in circumstances that serve the act’s remedial purposes,” will not necessarily constitute punishment in violation of the ex post facto clauses of the Federal and State Constitutions. Doe v. Attorney Gen., 426 Mass. 136 , 137 n.3 (1997). See Doe v. Attorney Gen. (No. 2), 425 Mass. 217 , 220 (1997).

Nonetheless, we have recognized that significant liberty and privacy interests of sex offenders are implicated by the registration law. See, e.g., Poe v. Sex Offender Registry Bd., 456 Mass. 801 , 813 (2010) (privacy interest); Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764 , 772 (2008), citing Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780 , 790-791 (2008) (liberty interest). Before imposing the burden of registration, and being subjected to public dissemination of information about them, sex offenders are entitled to procedural due process protections that include the opportunity for individualized hearings to determine present sexual dangerousness or risk of reoffense, and the appropriateness of the risk classification. Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90 , 91, 98 (1998). See Roe v. Attorney Gen., 434 Mass. 418 , 422-423 (2001). In Coe v. Sex Offender Registry Bd., 442 Mass. 250 , 257, 261 (2004), we held that the board’s publication of level three sex offender information on the Internet does not violate art. 12 of the Massachusetts Declaration of Rights, and declined to enhance procedural due process protections beyond what already was being provided by the opportunity for individualized risk classification hearings.

The prohibition contained in § 178K (2) (e), however, goes well beyond the registration and dissemination provisions we have said implicate substantial privacy and liberty rights of those convicted of sex offenses. The liberty and privacy rights at issue in this case are far more substantial. Cf., e.g., Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., supra at 781-782, 793.
But for the restrictions imposed by § 178K (2) (e), those who have been released from incarceration (and are not otherwise subject to supervision or restrictions, see G. L. c. 265, § 47, or committed to the Massachusetts Treatment Center as sexually dangerous persons, see G. L. c. 123A) are free to live where they choose and to move freely within and without the Commonwealth. See Coe v. Sex Offender Registry Bd., supra at 258 (“Level three sex offenders are not prohibited from leaving their residences or places of employment, and are not restricted in traveling in and outside of the Commonwealth . . .”). See also Commonwealth v. Weston W., 455 Mass. 24 , 32-33 (2009) (“Massachusetts Declaration of Rights guarantees a fundamental right to move freely within the Commonwealth”). A restriction on the right to choose where one lives is a further imposition on the liberty interests protected by our State Constitution.

Because the plaintiff has an existing placement in a rest home that the State in effect threatens to take away from him, the statute implicates property interests as well. Cf. Greene v. Lindsey, 456 U.S. 444, 446, 456 (1982) (right to continued residence in government-subsidized housing is significant interest in property to which due process rights attach). These constitutionally based interests are further threatened when the limitation that forces a person to leave a rest home renders him homeless.

Where a statute infringes on a constitutionally protected liberty or property interest, an individual is entitled to due process of law; how much process is due will depend on the magnitude of the deprivation. Doe v. Attorney Gen., supra at 140. We described in Roe v. Attorney Gen., supra at 427, the factors that must be considered in assessing whether the process afforded is sufficient:
“Where there is an interference with a protected liberty interest, the court must consider ‘the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [g]overnment’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’ Mathews v. Eldridge, [424 U.S. 319, 335 (1976)]. See Aime v. Commonwealth, 414 Mass. 667 , 675 (1993) (‘the individual interest at stake must be balanced against the nature of the governmental interest and the risk of an erroneous deprivation of liberty or property under the procedures which the State seeks to use’).”As noted, the determination that the plaintiff is a level three offender, and thus has been found to pose a risk of further offense to the community at large, subjects him to the registration requirements and dissemination provisions of G. L. c. 6, §§ 178C-178Q. Section 178K (2) (e), however, seeks to impose additional curtailments on his liberty and privacy rights, as well as on his right to live where he chooses, solely on the basis of the plaintiff’s level three classification. The statute presumes that all members of a class of sex offenders are dangerous to every community of rest home residents. It affords no opportunity for the plaintiff to demonstrate that he represents no or a minimal danger to the community the law is intended to protect and makes no provision for the necessary balancing of the plaintiff’s individual circumstances against the Commonwealth’s interest in protecting vulnerable elders from sexual assault. See Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780 , 793 (2008).

The United States Supreme Court has struck down as illegitimate certain “irrebuttable presumptions” where the “fit” was inadequate between a classification and the policy that the classification serves. See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 644-648 (1974) (administrative convenience insufficient to justify irrebuttable presumption of physical incapacity among pregnant teachers); Stanley v. Illinois, 405 U.S. 645, 656-658 (1972) (irrebuttable presumption that unwed fathers are unfit parents did not serve State’s goal of strengthening family ties). See also Michael H. v. Gerald D., 491 U.S. 110, 120-121 (1989).
Here, the “fit” between the classification and the State’s goals has not been sufficiently established. See Michael H. v. Gerald D., supra. Even assuming that some level three sex offenders in long-term care facilities pose a danger to other residents, others — perhaps especially those who have no history of assaults against adult victims — pose no particular danger to the population the policy aims to protect and are fully capable of contributing positively to rest home communities. See Cleveland Bd. of Educ. v. LaFleur, supra at 645-646. In light of the further encroachment on the plaintiff’s liberty and property interests imposed by the statute that places limitations on where he may reside, which is further heightened by his circumstances, the plaintiff must have an opportunity to establish that he poses minimal risk to the community the statute was intended to protect and, if removed from the rest home, will likely become homeless and expose himself to significant harm. Cf. Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., supra.
The defendants assert that the sex offender registration law already provides for individualized hearings in the context of classification. See G. L. c. 6, § 178L; 803 Code Mass. Regs. § 1.40(9)(c) (2002). Classification and reclassification procedures, however, are designed to assess the risk of reoffense and degree of dangerousness posed to the public for the purposes of determining whether and how the public should be informed about individual sex offenders. See G. L. c. 6, § 178K (1). Classification hearings balance sex offenders’ liberty and privacy interests implicated by the acts of registration and dissemination of information about them, against the need for the public to have information about dangerous sex offenders in order to protect vulnerable populations. See Coe v. Sex Offender Registry Bd., 442 Mass. 250 , 257-259, 261 (2004); Doe v. Attorney Gen., 426 Mass. 136 , 143 (1997). The plaintiff’s classification hearings did not adequately address the heightened liberty and property interests implicated by § 178K (2) (e).
3. Conclusion. In order to protect his liberty and property interests in continued residence in the rest home — to which he was admitted and where he chooses to live — the plaintiff is entitled to a meaningful opportunity to be heard before § 178K (2) (e) may be enforced against him. Because the statute does not provide for, or permit, such an individualized determination, as applied to the plaintiff it violates due process of law under the Fourteenth Amendment to the United States Constitution and arts. 10 and 12 of the Massachusetts Declaration of Rights. The matter is remanded to the county court where a declaration shall enter stating that, as applied to the plaintiff, G. L. c. 6, § 178K (2) (e), does not comport with the due process clause of the Fourteenth Amendment and arts. 10 and 12, and cannot be enforced against him.
So ordered.”

Attorney Ronald A. Sellon

Posted in Constitutional Law, Criminal Law & Procedure, General | Leave a comment

Appeals Court Rules on Accosting a Person of the Opposite Sex G. L. c. 272, § 53

The Appeals court recently held in COMMONWEALTH vs. DANIEL MORAN 80 Mass. App. Ct. 8 (2011) that the defendant was properly arrested, charged, and convicted with accosting or annoying a person of the opposite sex in violation of G. L. c. 272, § 53, when as the defendant passed the victim within arm’s reach, he said, “Hi, nanny,” grabbed his camouflage trousers, and moved his “private area up and down” in a “[v]ery obvious” movement that “reflected masturbation.” This while she pushed a 16 month old child in a carriage. The evidence was sufficient to prove beyond a reasonable doubt that the defendant’s conduct was offensive and disorderly, in that it was repugnant to the prevailing sense of what is decent or moral. The other important part of the case, is that although the statute says “two or more acts”, the court here points out that in an instance like this only one act is sufficient.

The court in deciding stated “On appeal, the defendant’s contention that the evidence was insufficient to support his conviction has two prongs, both of which spring from the language of G. L. c. 272, § 53. In relevant part, that statute, as appearing in St. 2009, c. 27, § 98, provides that “persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex . . . [shall] be punished.” The first prong of the defendant’s argument is that his activity was neither offensive nor disorderly. The second prong rests on his assertion that the evidence only reveals a single act, but given the statutory prohibition of “acts” that accost or annoy, conviction requires proof of at least two. Neither contention is persuasive.
As to the first prong of the argument, the Commonwealth must prove beyond a reasonable doubt that the conduct at issue was “offensive and disorderly to a reasonable person.” Commonwealth v. Cahill, 446 Mass. 778 , 781 (2006). An “offensive” act is one that causes “displeasure, anger or resentment; esp. [one that is] repugnant to the prevailing sense of what is decent or moral.” Ibid., quoting from Black’s Law Dictionary 1113 (8th ed. 2004). “Disorderly” acts include those that involve “threatening . . . behavior.” Commonwealth v. Chou, 433 Mass. 229 , 232 (2001). The threat need not involve physical contact, see Commonwealth v. LePore, 40 Mass. App. Ct. 543 , 548-549 (1996) (voyeurism), and “[s]exually explicit language, when directed at particular individuals in settings in which such communications are inappropriate and likely to cause severe distress, may be inherently threatening.” Commonwealth v. Chou, supra at 234.

Given those well-established guidelines, the evidence was sufficient to prove beyond a reasonable doubt that the defendant’s conduct was offensive and disorderly. Within reaching distance of Jones, the defendant drew attention to himself by saying, “Hi, nanny,” while grabbing the genital area of his pants and moving his hand up and down, mimicking masturbation. Surely a fact finder could conclude that conduct of that sort is “repugnant to the prevailing sense of what is decent or moral.” Commonwealth v. Cahill, supra. Moreover, the conduct fairly bristled with menace. A stranger’s unbidden suggestion of sexual activity is inherently menacing, for it invades a very private zone. The defendant delivered his suggestion in person and at close quarters. He did so in the company of another man, also a stranger to Jones. And a fact finder would be entirely warranted in concluding that Jones’s sense of vulnerability was enhanced by the presence of her young charge in the stroller she was pushing. There was, in sum, ample evidence to support a finding that the defendant had engaged in threatening behavior.

The defendant’s second argument is that the evidence shows only a single act, and conviction requires proof of “offensive and disorderly acts or language.” He supports his contention not only by pointing to the statutory language but also by relying on the District Court’s model jury instruction, which states that “the Commonwealth must prove beyond a reasonable doubt . . . that the defendant committed two or more disorderly acts.” Instruction 6.600, Criminal Model Jury Instructions for Use in the District Court (Mass. Cont. Legal Educ. 2009).

We acknowledge the thoughtful statutory analysis typically underlying the model instructions, but in the end, we come at the interpretive process afresh. See, e.g., Norfolk & Dedham
Mut. Fire Ins. Co. v. Morrison, 456 Mass. 463 , 467 (2010). In so doing, we start with the words of the statute, for they are the best indication of its meaning and purpose. See, e.g., Adoption of Marlene, 443 Mass. 494 , 497-498 (2005). In construing those words, accepted canons of construction play an important role.

Many such canons are codified in G. L. c. 4, § 6, inserted by St. 1967, c. 867, § 1, a statute that requires their use unless to do so “would involve a construction inconsistent with the manifest intent of the law-making body or repugnant to the context of the same statute.” Of most relevance here is G. L. c. 4, § 6, Fourth, as appearing in St. 1998, c. 170, the pertinent portion of which says that “[w]ords importing the singular number may extend and be applied to several persons or things, [and] words importing the plural number may include the singular.” The statutory canon has been applied in civil and criminal contexts. See Commonwealth v. Tsouprakakis, 267 Mass. 496 , 501 (1929); Commonwealth v. Montecalvo, 367 Mass. 46, 49 (1975); Hopkins v. Liberty Mut. Ins. Co., 434 Mass. 556 , 561-563 (2001). Applying that canon to G. L. c. 272, § 53, provides an ample basis for applying the statute to a single act.

Comparison of the manner in which the Legislature has handled a similar subject in other statutes also is instructive. See, e.g., Lavecchia v. Massachusetts Bay Transp. Authy., 441 Mass. 240 , 245-246 (2004). The word “acts” appears in several criminal statutes. See, e.g., G. L. c. 260, § 4C (sexual abuse of minors); G. L. c. 265, § 13L (wanton or reckless behavior creating risk of injury to a child); G. L. c. 265, § 22 (aggravated rape); G. L. c. 265, § 22B (aggravated rape of a child); G. L. c. 265, § 45 (community parole supervision for certain criminal offenses); G. L. c. 268A, § 2 (corrupt gifts); G. L. c. 272, § 26 (resorting to restaurants or taverns for immoral purposes). When the Legislature intended application of the word only in its plural form, however, it has used modifiers to drive the point home. See, e.g., G. L. c. 265, § 43, as appearing in St. 2010, c. 92, § 9 (“pattern of conduct or series of acts” required for crime of stalking); G. L. c. 265, § 43A, as appearing in St. 2010, c. 92, § 10 (“pattern of conduct or series of acts” required for crime of harassment); G. L. c. 266, § 62 (proof of “three or more distinct acts” required to prove crime of being common receiverof stolen goods). See also Commonwealth v. Kwiatkowski, 418 Mass. 543 , 547-548 (1994) (construing criminal stalking statute); Commonwealth v. Welch, 444 Mass. 80 , 89-90 (2005) (construing criminal harassment statute). The absence of modifiers in G. L. c. 272, § 53, therefore, suggests that the Legislature did not intend to restrict the statute’s coverage to situations where a defendant engaged in more than one act.

To the extent doubt remains, we may look to “the cause of [the statute’s] enactment, the mischief or imperfection to be remedied and the main object to be accomplished.” Hanlon v. Rollins, 286 Mass. 444 , 447 (1934). Above all, we must apply the statute in a manner that avoids absurd results. See Flemings v. Contributory Retirement Appeal Bd., 431 Mass. 374 , 375-376 (2000). In Commonwealth v. Chou, 433 Mass. at 233, the Supreme Judicial Court held that the statute’s primary purpose was to “criminalize offensive and disorderly conduct or language that has a personal and private, rather than a necessarily public, impact.” Limiting the statute’s application to multiple acts of disorderly conduct bears no conceivable relation to that purpose. Moreover, such a limitation would lead to absurd results. The statute prohibits offensive “acts or language.” Reading it to require proof of multiple acts would mean that one who by a single hand gesture clearly pantomimed an offensive suggestion would be immune from prosecution but a person who verbalized precisely the same suggestion could be prosecuted for doing so. We cannot assume that the Legislature intended any such result.

Finally, there is legislative history. As noted in the commentary to the District Court’s model jury instruction, the word “acts” was inserted in G. L. c. 272, § 53, by an amendment adopted in 1983. See St. 1983, c. 66, § 1. Before the amendment, the singular form of the word had been in place for nearly seventy years following its first appearance in 1914. See St. 1914, c. 743. We do not think that the change was one of substance.

We reach that conclusion because, except for changing the word “act” to “acts,” the 1983 amendment focused entirely on the subject of prostitution. It added to § 53 the status crime of being a “common street walker” and removed from the statute the word “prostitutes.” In addition, a 1983 amendment added a new statute, i.e., G. L. c. 272, § 53A, criminalizing the act of accepting or paying money for sexual conduct, or offering to do so.

Substitution of “acts” for “act” had nothing to do with prostitution. Instead, it focused on syntax. Before the amendment, the pertinent language read “persons who with offensive and disorderly act or language accost or annoy persons of the opposite sex . . . .” St. 1959, c. 304, § 1. The phrase was awkward and would have flowed more naturally had it read “persons who with an offensive and disorderly act or offensive and disorderly language.” We think that in 1983 the Legislature simply chose a more succinct way to achieve harmonious syntax by changing the word “act” to “acts” so that the phrase read, as it reads today, “persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex . . . .” So viewed, the change had no impact on the statute’s meaning.

There was, then, sufficient evidence to support a finding that the defendant’s conduct was offensive and disorderly. The statute applies to the commission of a single act.
Judgment affirmed.”

Attorney Ronald A. Sellon

Posted in Criminal Law & Procedure, General | Leave a comment

Boston Quinn Bill Case at the SJC

The Boston Quinn bill case will be argued later today at the Supreme Judicial Court. For anyone interested in watching the argument I have attached a link here where Suffolk law broadcasts all the arguments for the court.

The case will be argued by Bryan Decker of Sandulli Grace, and in-house counsel from the Massachusetts Coalition of Police has also filed an Amicus brief on the case.

The issue of the case revolves around whether “the City of Boston violated M.G.L. c. 41, 6 lOBL (“the Quinn Bill”) when, in January 2010, it reduced educational stipend payments to plaintiff
Boston Police Officers.” The crux of the argument is that the Quinn bill is not covered under M.G.L. c. 150E, which covers collective bargaining.

There are going to be widespread affects from the decision in the case felt far beyond the city of Boston. Many communities are waiting for the answer before taking any action themselves.

Attorney Ronald A. Sellon

Posted in General, Quinn Bill | Leave a comment