Takings are out of control; whither went democracy?

My colleague Prof. Ralph Clifford is cited and quoted in this item from the Pacific Legal Foundation. The PLF opined with disapproval upon takings problems in which the government essentially exploits the takings power after discounting property value by tax liability, a one-two punch, kicking the owner to the street.

The abuse is compounded by the continuing latitude of governments to line the pockets of private investment with the proceeds of takings, upheld in Kelo v. New London (2005).  See also the award-winning documentary Little Pink House (2017), and a mouth-watering Kelo epilog.

This on the heels of discussion at UMass Law last week of a U.S. Supreme Court cert. petition filed in Smyth v. Conservation Commission of Falmouth (Mass. App. Ct. Feb. 19, 2019), now No. 19-223 (pet. filed U.S. Sept. 19, 2019), in which the Massachusetts Court of Appeals rejected a takings claim upon denial of a building permit.  (HT@ Dean Eric Mitnick.  The court heard arguments in the case at UMass Law last year.)

One doesn't have to look far nowadays for abuses of governmental power that are bipartisanly objectionable yet persist to the shameless aim of making the rich richer.  I'm presently reading Amor Towles's A Gentleman in Moscow, a fiction about the aftermath of the Russian revolution; when you're a libertarian and you start thinking "those Bolsheviks weren't all bad," something has gone awfully wrong in America.

Here is an excerpt of the PLF item:

Uri is a retired 83-year-old Michigan engineer, and in 2014 he accidentally underpaid, by $8.41, the property taxes on a home he rented out. But instead of notifying him of the issue and helping him, his county government seized the home and sold it at auction for $24,500. The county then kept all the proceeds—leaving Rafaeli with nothing.
All for an 8 buck mistake.

That may sound like an extreme and unusual case. But in fact, this type of tax forfeiture abuse, called home equity theft, is completely legal in 13 states.

In Alabama, Colorado, Maine, Massachusetts, Michigan, Minnesota, New York, North Dakota, Oregon, and Wisconsin, governments not only keep the value of unpaid property taxes and interest from the sale of a seized home—they also keep the surplus value rather than returning it to the property owner. In Arizona, Colorado, Illinois, Massachusetts, and Nebraska, private investors often reap the gains of home equity theft.

Here is the abstract of Prof. Clifford's 2018 study:

Prof. Clifford

The predominant method for collecting delinquent real estate taxes in Massachusetts is the use of the “tax deed” as authorized by Chapter 60, Sections 53-54. Under the authorized procedures, each municipality’s tax collector can execute and record a deed that transfers fee simple title to the real estate to the municipality subject to the taxpayer’s statutorily created redemption right. If the redemption right is or cannot be exercised, all of the taxpayer’s rights in the property, as well as other’s rights created by encumbrances such as mortgages, are terminated by the foreclosure process provided for in the statute. Importantly, the municipality does not obtain title to the taxpayer’s land by foreclosure; instead, it merely frees itself of any remaining claim by the taxpayer.

The problem with the tax deed procedure is that it fails to provide both procedural and substantive due process to the taxpayer. Procedurally, although adequate notice is given, title to the taxpayer’s real estate is taken by the government without a hearing. Based on an unreviewed decision by a municipal tax collector, the taxpayer immediately loses title to the land. Substantively, by using a tax deed, the municipality engages in the taking of property without providing reasonable compensation. The value of the land taken for payment of the tax debt is not evaluated in the context of the debt owed. Empirical evidence shows that the property’s value significantly exceeds the debt owed, giving the municipality the ability to collect almost fifty dollars for every dollar of delinquent real estate tax owed, on average. Each year, approximately $56,000,000 is unconstitutionally appropriated from taxpayers. This article explores these problems. 

And here are the questions presented in the Smyth petition:

In Penn Central Transp. Co. v. N.Y., 438 U.S. 104 (1978), this Court held that Fifth Amendment “regulatory takings” claims are governed by three factors: the “economic impact” of the challenged regulatory action, the extent of interference with a property owner’s “distinct investment-backed expectations” and the “character of the governmental action.” Id.

Falmouth, Mass., property, posted by Frank Haggerty to Patch.

The Massachusetts Appeals Court applied the Penn Central factors to hold that Respondent Town of Falmouth (Town) did not unconstitutionally take Petitioner Janice Smyth’s (Mrs. Smyth) property by denying a permit to build a home. Mrs. Smyth’s parents purchased the lot in 1975 for $49,000 ($216,000 in today’s dollars), but did not develop it. In the meantime, the entire subdivision was developed. When Mrs. Smyth inherited the lot and sought to build, the Town refused to grant a permit based on regulation post-dating her interest. The denial left Mrs. Smyth’s lot without any possible use except as a “playground” or “park,” and stripped it of 91.5% of its value. Yet, the court below held that none of the Penn Central factors weighed in favor of a taking under these circumstances.

The questions presented are:

1. Whether the loss of all developmental use of property and a 91.5% decline in its value is a sufficient “economic impact” to support a regulatory takings claim under Penn Central.

2. Whether a person who acquires land in a developed area, prior to regulation, has a legitimate “expectation” of building and, if so, whether that interest can be defeated by a lack of investment in construction?

3. Whether the Court should excise the “character” factor from Penn Central regulatory taking analysis.

My Comparative Law class is reading about democratic deficit in Europe.  It's a good time to remember that the study of comparative law can be as much about similarities as differences.

Best friend of teen struck, killed by train may claim negligence without physical injury, appeals court rules

On a "zone of danger" theory, the Massachusetts Appeals Court last week reinstated the claim of negligent infliction of emotional distress by the teenage best friend of a girl struck and killed by an MBTA commuter train in Lawrence, Massachusetts.

Fence gap in NECN coverage, Oct. 31, 2014.  More from WCVB below.
Be warned, video surveillance captured girls' screams. 

Thirteen-year-old best friends Kiandra Calderon and Jenaira Fuentes were crossing rail tracks in between their homes and shops, where they bought Halloween costumes.  The court recounted, "For most, if not all, of the ten years during which the defendant [Royal Park, LLC] has owned the property, there have been large holes and gaps in the fence through which adults and children pass on a daily basis in order to reach nearby shopping plazas and the Lawrence High School." On Halloween 2014,Jenaira was struck and killed by an MBTA train.  "Kiandra, who was not struck by the train, tried to perform life saving measures on her friend and then remained close by as rescue personnel unsuccessfully tried to save Jenaira's life."

Kiandra sued on two counts, first, for negligence under the Massachusetts child trespasser statute, and second, for negligent infliction of emotional distress (NIED).  The court recognized that the two claims were essentially the same, because the trespasser statute provided the standard of care for the NIED, and the NIED provided the alleged injury required by the trespasser statute.  According to the pleadings, Kiandra's suffering was so severe that it manifested physically, as NIED claims typically require at minimum, requiring medical treatment for "anxiety, depression, sleeplessness, night terrors, nightmares, diminished appetite and food intake, bouts of extreme anger, behavioral problems at home and school, poor educational performance, and self-harm."

Even so, NIED claims are typically disallowed in the United States.  Negligence, or foreseeable accident, is regarded as too thin a reed on which to hold a defendant responsible for the merely emotional suffering of another, in the absence of physical injury.  Imagine if every romantic breakup resulted in an NIED lawsuit.  Whatever tort reformers or foreign observers might think, the United States isn't that lawsuit crazy.

There are exceptions, though, to the no-NIED rule.  Massachusetts is among the states that have kept the door open for the occasional compelling theory of NIED, not rejecting the notion outright.  And there are exceptions that are widely accepted.  Courts throughout the states are willing to award NIED recoveries to plaintiffs who were in the "zone of danger" themselves, even if narrowly escaping physical injury, reasoning that the physical threat was sufficient to make emotional distress claims credible and verifiable.  A smaller number of states are willing to award NIED recoveries to a narrow class of bystanders, those who contemporaneously witness physical injury inflicted on a close family member.

Kiandra's counsel tried to bring her within the bystander category by pleading the closeness of the teens' best friendship; the trial court was not moved.  However, the Appeals Court held, the trial court failed to consider Kiandra's own position in the zone of danger.  The girls were walking the tracks together, and just one was struck and killed.  Pending further development of the facts, it looks like Kiandra was in much the same jeopardy as her friend (see the WCVB video above, but be warned, the audio tough to hear).  The court sharply distinguished bystander NIED recovery from zone-of-danger recovery.  In the latter case, the plaintiff is a direct victim of the defendant's negligence, not an indirect sufferer as witness, and need not prove a close family relationship.  The court reversed and remanded for Kiandra to pursue her day in court.

The case is Calderon v. Royal Park, LLC, No. 18-P-1014 (Mass. App. Ct. Sept. 10, 2019).  Vuono, Wolohojian, and McDonough, JJ., were on the panel.

Shine the light: 'Journal of Civic Information' debuts

There can't be enough research on facilitating the freedom of information, given that today we are a global information society.  A new journal debuted this month from the Brechner Center and partners that strikes at the FOI sweet spot, and as we wish all information projects were, it's open access.  Welcome to The Journal of Civic Information.  Here is its About:

The Journal of Civic Information is an open-access, interdisciplinary journal that publishes peer-reviewed research related to the field of accessibility of public information. We welcome submissions from both scholars and practitioners from all disciplines that involve managing information for public use. 

The Journal is a publication of the Brechner Center for Freedom of Information at the University of Florida. The Brechner Center is an incubator for initiatives that give the public timely and affordable access to the information necessary for informed, participatory citizenship. The Center is a source of research, expertise and advocacy about the law of gathering and disseminating news across all platforms and technologies. 

The Journal publishes quarterly online, and author submissions will be accepted on a rolling year-round basis. 

Proposals may encompass any research methodological approach (legal, survey, experimental, content analysis, etc.), and should provide insights of practical value for those who work day-to-day in access to government information. Topics may include issues regarding access to public records and meetings, court transparency, access to public employees and elected officials, open data and technology, and other related matters. The Journal gives priority to articles with relevance to the state-and-local levels of government. 

And here is the ToC for volume 1, issue 1:

Editor's Note
Frank D. LoMonte & David Cuillier
An Introduction

Legal Analysis

Daxton "Chip" Stewart & Amy Kristin Sanders
Secrecy Inc.: How Governments Use Trade Secrets, Purported Competitive Harm and Third-Party Interventions to Privatize Public Records

Katie Blevins & Kearston L. Wesner
Access to Government Officials in the Age of Social Media

Social Science

Alexa Capeloto
Agency Perspectives on Online Public Records Request Portals

Jodie Gil
Tracing Home Address Exemptions in State FOI Laws

Submitting authors start here.  The journal is headed by access aces Frank LoMonte, University of Florida; David Cuillier, University of Arizona; and Rachael Jones, University of Florida.  I'm privileged to add the rough edge to an otherwise exceptionally well rounded editorial board.

Bring it on, secrecy!

Appeals court rejects landowner liability for 'open and obvious' danger of backyard zipline

The same day the Massachusetts Supreme Judicial Court decided the Boston Globe case this week, the Court of Appeals affirmed summary judgment for the defendants against a landowner liability claim in which a six-year-old was injured on a backyard zipline.

A backyard zipline with a child safety seat. (Larry Koester CC BY 2.0.)

A handy defendant had installed the backyard zipline himself.  Six-year-old Aaron was visiting with his father to pick up Aaron's older brother from a sleepover.  The father aided Aaron in trying out the zipline, but after giving the boy some freedom, Aaron lost his grip, fell, and suffered compound fractures to his arm, requiring multiple surgeries.

Plaintiffs sued in landowner liability, alleging an unreasonably dangerous condition, as the zipline lacked a safety seat that could have prevented such an accident.  Defendants answered that the danger of the zipline, including the lack of a safety seat, was open and obvious, so negated the landowner's duty.

The court agreed that the condition was open and obvious, which somewhat negates the duty of a landowner, because it is the open-and-obvious nature of the hazard that makes it unforeseeable that the guest would fail to exercise reasonable care.  Plaintiffs argued that the condition was not open and obvious to the perception of a six-year-old.  The court held that when the child is under adult supervision, it is the perception of the adult, not that of the child, that controls.

However, the court held that an open and obvious condition does not necessarily negate a duty to abate an unreasonably dangerous condition "when the owner knows or has reason to know that visitors might nonetheless proceed to encounter the danger for a variety of reasons, including being distracted, forgetful, or even negligent, or deciding that the benefits of encountering the condition outweigh the risks."  Still, the court found the record "devoid of evidence that the zip line was unreasonably dangerous, or that the defendants facilitated an 'improper' or 'highly dangerous use' ...."

The conclusion is sound, but the reasoning highlights a problem with persistent common law doctrines that revolve around "open and obvious danger."  There is a tendency for litigants and courts to indulge "open and obvious" as a magical incantation that changes the rules of the match, such as here, to negate a duty of care.  Yet as the court observes, the doctrine does not necessarily negate the duty of care.  This approach gets legal duty analysis tied up in a web of factual intricacy that is not what policy-driven landowner duty is supposed to be about.

Harry Potter magic duel 095/365 (Louish Pixel CC BY-NC-ND 2.0)

Rather than indulging in a tennis match between duty, no duty, and duty again!, the courts should recognize that "open and obvious" is a factual circumstance, so goes to the standard of reasonable care exercised in warning about the danger or abating it.  That's where this case winds up anyway.  And just because it's a reasonableness analysis doesn't mean the court cannot, as here, dispose of the case in pretrial summary judgment when ordinary minds could not differ on the outcome.

I teach landowner negligence (page 25), or premises liability, with "open and obvious" as a matter of evidence rather than a sort-of defense, and I think that's the cleaner doctrine.  But I always have to warn students to watch out, in any given jurisdiction, that a judge might be entranced when counsel waves her wand and utters the spell, "Openanobvius!"

The case is LaForce v. Dyckman, No. 18-P-1234 (Mass. App. Ct. Sept. 9, 2019).  Sullivan, Massing, and Lemire, JJ., were on the panel.

Teachable torts, Patriots edition: Civil complaint against Antonio Brown

Antonio Brown in 2014 (by Brook Ward CC BY-NC 2.0)

New England news is afire today over the civil lawsuit filed against NFL Patriots football acquisition Antonio Brown.  It happens that many 1L law students are presently immersed in their first exposures to intentional torts and federal jurisdiction.  So here from Mnwilla at Scribd is the complaint and some comments for thought.

Antonio Brown Lawsuit by mnwillia on Scribd

Notes and Questions

1. The case is filed in federal court in Florida, but the claims are all in state tort law. What is the basis for federal jurisdiction?  Why do you think the complaint was filed on Brown's first scheduled day of practice with the Patriots?

2. The fact statement is lengthy, paragraphs 14 to 74. But federal practice requires only "notice pleading."  Plaintiff's counsel gives up a lot of information about the plaintiff's theory of the case by putting more content than necessary into pleadings.  So why so much ink on factual allegations?

3. There are five straightforward counts, or causes: two in battery, one in false imprisonment, one in IIED, and one in invasion of privacy.

• Notice how false imprisonment appears incidentally to other claims.  Unlike MBE hypotheticals, few cases in real life support false imprisonment by itself. 
• One of the battery counts is called "sexual battery (rape)."  That's not really a distinct kind of battery in multistate common law, and it doesn't here appear to be covered by any specific statute, apart from common law.  Nevertheless, a plaintiff may claim separate counts of tort upon discrete factual bases.  What are the advantages of doing so?
• What challenges does the plaintiff face in proving IIED?  Do the factual allegations get her there?  Is there vulnerability on this count or any other to a 12(b)(6) motion?

4. The plaintiff seeks punitive damages, and the bases for that claim are stated within the counts. Some jurisdictions require that sufficient allegations to support a claim for punitive damages be stated in a separate count, even though "punitive damages" is a damages claim, not a tort.  Can you discern the rule for punitive damages in the state jurisdiction, based on the allegations?

Antitrust regulators need to up their game to meet challenges of media convergence, Argentine researchers write in UNESCO paper

Published by UNESCO, a new policy paper from Argentine researchers Martín Becerra and Guillermo Mastrini warns that antitrust regulation must adapt to the convergence of media, telecommunication, and internet to remain effective and preserve people's rights.

Prof. Mastrini

Becerra is a researcher with the National Scientific and Technical Research Council (CONICET), an Argentine government agency, and holds academic appointments at the National University of Quilmes (UNQ) and the University of Buenos Aires (UBA).  Mastrini also serves on the UBA faculty.

The researchers reach the counter-intuitive conclusion that the internet's accessibility to new market entrants, and the ease with which new communication technology should facilitate the balkanization of media services, ironically has worked to concentrate property, revenue, and audience globally.  Thus the role of the regulator is more important than ever, while anachronistic regulatory approaches remain siloed in sectors of disparate expertise.

Prof. Becerra

Becerra and Mastrini rather articulate a "relevant market" approach to organize regulatory authority.  At the same time, they eschew a one-size-fits-all approach to the different problems presented by different entities, namely internet "giants," telecommunication conglomerates, and media companies.  Moreover, the researchers stress that values of access to culture, freedom of expression, and pluralism should be baked into the regulatory framework.

The report is La convergencia de medios, telecomunicaciones e internet en la perspectiva de la competencia: Hacia un enfoque multicomprensivo (my translation: The Convergence of Media, Telecommunication, and Internet from the Perspective of Competition: Toward a Multiple-Understanding Approach) and is published by UNESCO as no. 13 in the series, Discussion Notebooks on Communication and Information, ISSN no. 2301-1424 (2019).  The report is in Spanish and includes an executive summary in translation.  HT @ Observacom.

Here is the executive summary:

The converging qualities of information and communication technologies challenge classic regulatory frameworks when regulating audiovisual media activities, on the one hand, and telecommunications, on the other. The digitalization of communications causes a metamorphosis in the definitions of what each sector encompasses and the emergence of actors that provide products and services and develop businesses in convergent markets simultaneously and in increasingly vast geographical areas.

Regulatory approaches that sought to protect freedom of expression in the media, guarantee access to cultural and informational resources and sustain economic competition to avoid distortion of markets today are being reviewed in light of the new reality of progressive integration and of the growing crosscutting elements within the media, telecommunications and Internet ecosystem. In fact, there are limitations that prevent responding effectively and consistently to the problems raised with the consolidation of the digital revolution.

This policy paper provides analytical tools based on comparative law and inquires about antitrust policies and their relationship with the objective of having diverse and pluralistic communication systems that stimulate public debate in democratic societies. Therefore, it has a multi-understanding approach, since one of its objectives is to facilitate the dialogue of areas that until now have had fields of study, normative translations and institutional expressions separated from each other.

After consulting Latin American regulators in the area of defense of competition, specialists in the region in the field and presenting an updated state of the art of the debate about the relevance of economic competition approaches to seek clear answers for the new problems of a convergent environment in communications, the document makes recommendations with the aim of improving the design of public policies both in the field of information and communication services, and in those that serve economic competition, harmonizing fields and disciplines that were not conceived in an articulated way.

In this context, the policy paper is proposed as an input for public policies and a contribution to optimize the understanding of current phenomena with deep repercussions in the culture, information and communication of societies and individuals.

En español:

Las cualidades convergentes de las tecnologías de información y comunicación desafían los encuadres normativos clásicos a la hora de regular las actividades de medios audiovisuales,  por  un  lado,  y  las  de  telecomunicaciones,  por  otro  lado.  La  digitalización de las comunicaciones provoca una metamorfosis en las propias definiciones de lo que cada sector abarcaba y el surgimiento de actores que proveen productos y servicios y desarrollan negocios en los mercados convergentes de modo simultáneo y en ámbitos geográficos cada vez más vastos.

Los enfoques regulatorios que buscaron como objetivos proteger la libertad de expresión en los medios de comunicación, garantizar el acceso a los recursos culturales e informacionales y sostener la competencia económica para evitar la distorsión de los mercados hoy están siendo revisados a la luz de la nueva realidad de la progresiva integración y de los cruces cada vez mayores dentro del ecosistema de medios, telecomunicaciones  e  Internet.  En  efecto,  hay  limitaciones  que  impiden  responder  de manera eficaz y consistente los problemas suscitados con la consolidación de la revolución digital.

El presente policy paper provee herramientas de análisis basadas en el derecho comparado e indaga sobre las políticas antitrust y su relación con el objetivo de contar con sistemas de comunicación diversos y plurales que estimulen el debate público en sociedades democráticas. Por ello es multicomprensivo, dado que uno de sus objetivos es facilitar el diálogo de áreas que hasta el presente han tenido campos de estudio, traducciones normativas y expresiones institucionales separadas entre sí.

Tras consultar a reguladores latinoamericanos del área de defensa de la competencia, a especialistas de la región en la materia y exponer un actualizado estado del arte del debate académico y de divulgación acerca de la pertinencia de los enfoques de competencia económica para satisfacer con respuestas claras los nuevos problemas propios  de  un  entorno  convergente  en  las  comunicaciones,  el  documento  formula  recomendaciones con el objetivo de mejorar el diseño de las políticas públicas tanto en el campo de los servicios de información y comunicación, como en el de las que atienden  a  la  competencia  económica,  armonizando  campos  y  disciplinas  que  no  fueron concebidos de modo articulado.

En este sentido, el policy paper se propone como un insumo de políticas públicas y una contribución para optimizar la comprensión de fenómenos actuales con hondas repercusiones en la cultura, la información y la comunicación de las sociedades y las personas.

Media didn't totally lose in Boston Globe access case over show cause criminal procedure

The Massachusetts Supreme Judicial Court today ruled against The Boston Globe in the Spotlight team's bid for access to the court records of a narrow class of show cause criminal hearings.  The case is a loss for access advocates, but not wholly.  The court did not deviate from established analyses for access to the judicial records.  And the court used its superintendence power to require data collection for public scrutiny of what happens in these shadowy hearings going forward.

I wrote about this case and these hearings on The Savory Tort in May.  This particular class of "show cause" hearing is a peculiar creature of Massachusetts law and practice, in which a court clerk, not a judge, gets a chance to second-guess police and refuse to issue a criminal complaint, ending a case.  On the up side, this is a process barrier that protects would-be criminal defendants from harsh consequences in minor matters that don't warrant the expenditure of judicial resources, also encouraging alternative dispute resolution.  On the down side, critics have suspicions about these proceedings being used to protect the powerful, to show favoritism among attorneys, and, willfully or not, to effect race and other forms of discrimination in the criminal justice system.

The Globe sought access specifically to records of the sub-class of these hearings in which clerks found probable cause, yet refused to issue criminal complaints.  Public data about these hearings show big disparities among courts in the prevalence of these outcomes, which occur about 9,000 per year in the commonwealth, fueling speculation as to clerks' motives and rationales.  Making matters worse, there is inconsistency in how well clerks record and track what happens in the hearings, often leaving a scant record for review later, whether by a court, public oversight authority, or investigative journalist.

Photo by tfxc. (CC BY-NC-ND 2.0.)

The Globe argued for access under common law, the First Amendment, and the Massachusetts Declaration of Rights.  In today's ruling, the court rejected access on all three bases.  In doing so, though, the court colored within the lines of existing access doctrine.

Most compelling, first, was the Globe's common law argument: "not without merit," the court conceded.  The court acknowledged that the common law presumption of access to court records is known to attach to three classes of records: criminal cases, search warrants and affidavits after service, and public inquiries.  The court rejected analogy to criminal cases, because the show cause hearing occurs before a criminal case is initiated.  Rather, the proper analogy, the court reasoned, is a grand jury refusal to indict, which is sealed presumptively at common law.  The court also rejected analogy to pre-complaint search warrants, reasoning that the appropriate analogy is to the search warrant denied, or not yet served, when the public interest still weighs in favor of secrecy.

Pressing on the scale in favor of analogy to secret proceedings at common law was the privacy interest of the accused.  Here the broader context of the contemporary internet and technology as a threat to personal privacy overshadowed the court's logic.  The court reasoned that a principal common law rationale for secrecy in grand jury proceedings and in denied search warrants, namely, protection of the reputation of the innocent, is powerfully implicated in today's world, when a public record of a show cause hearing could turn up online.  There it would be accessible to everyone, including landlords and employers, who might discriminate against a person who never suffered a criminal complaint.

For the record, this argument for privacy and reputational integrity pulls at even my skeptical heart strings, as I have advocated for American adoption of the European online erasure concept in precisely this vein, notwithstanding First Amendment objections.  That said, I admit, it's a bit troubling to see this problem of unwarranted discrimination arising in the private misuse of information sneaking in through the back door of common law access and accountability analysis as a justification for government secrets.  Arguably the solution to the misuse of information is to do something about the person who misuses information, rather than redacting the free flow of information itself.  But that's a debate for another day.

Second, the court's First Amendment analysis tracked the common law analysis.  On the up side, the court employed the now long known, if no less opaque and controverted, "experience and logic" test of First Amendment access to the courts.  Building upon the analogy of the show cause hearing to grand jury secrecy, access was bound to fail both prongs of the First Amendment test.  Analogy naturally doomed the experience analysis, because pre-complaint criminal process has never been public.  And the privacy concerns fueled failure of the logic test.  The problem with "experience and logic" always has been that its results are foreordained by how one thinks about the hearing or record to which access is sought. 

Third, the court wrote that it never before has construed the Massachusetts Declaration of Rights more broadly than the First Amendment with regard to judicial access, and it saw no reason to do so today.  That disappoints me mostly just from the broad standpoint of liking creative state judicial construction of state constitutions as an instance of the 50-state-laboratory theory of our federalism.  In an age of paralysis in Washington—think gerrymandering—state constitutional law is a promising way forward.

Massachusetts Supreme Judicial Court

Faithful to access doctrine, the court pointed out that upon its very same grand jury analogy, it remains possible for an intervening movant, say, an investigative journalist, to seek access to a show cause record on a case by case basis.  This is a lesser known, and for my money under-utilized, access strategy, so it's pleasing to see the court stamp its imprimatur.  Common law access and secrecy are both presumptions, and each may be rebutted.  The court explained, "In considering individual records requests, the clerk-magistrate should balance the interests of transparency, accountability, and public confidence that might be served by making the requested records public against the risk that disclosure would unfairly result in adverse collateral consequences to the accused."

Transparency may win out, the court advised, in matters of public interest.  "[W]here the accused is a public official, the interests of transparency, accountability, and public confidence are at their apex if the conduct at issue occurred in the performance of the official's professional duties or materially bears on the official's ability to perform those duties honestly or capably."  That's a key check on clerks who might give the politically powerful a break—as long as watchdogs have an inkling to ask.

How will watchdogs know when something is amiss?  Even the court seemed somewhat concerned about the "wide disparities" in dismissed matters in the Globe's data set, e.g., probable cause with no criminal complaint issuing, one year "from a high of 43.9 percent in the Gloucester Division to a low of 0.2 percent in the Chelsea Division."  Though expressly eschewing any conclusion from the numbers, the court observed that "the magnitude of the apparent differences among courts suggests that different clerk's offices might have very different philosophies regarding the adjudication of these hearings."

To help the watchdog, the court exercised its power of superintendence over lower courts to compel electronic recordings of show cause hearings, preserving the record of judicial reconsideration in appropriate cases, and careful compilation of data about the secret hearings, including the race and gender of persons accused, and the names of attorneys in cases of private complainants.  Courts are expected to come into compliance in a year's time and to report anonymized statistics publicly.

Those measures hardly open the door to secret proceedings the way the Globe wanted, and they do nothing about the problem of clerks appointed through political connections playing an outsized role in the criminal charging process.  But the Globe got better than nothing, and maybe the door is cracked open just enough to deter dubious conduct and to squeeze some accountability out through a shaft of sunshine.

The decision against the Globe's petition for declaratory relief came from a unanimous panel of the Supreme Judicial Court, comprising six of the seven justices, and was authored by Chief Justice Ralph D. Gants.  The case is Boston Globe Media Partners LLC v. Chief Justice of the Trial Court, No. SJC-12681 (Mass. Sept. 9, 2019).

CFP: New England Political Science Association to meet in Mystic, Conn., April 2020

The New England Political Science Association has released its CFP for the annual meeting in April 2020, which will take place in Mystic, Connecticut.  The NEPSA program always offers a buffet of intriguing work in political science and public policy.  Though attendees are overwhelmingly PhDs and PhD candidates, they've always warmly welcomed me and my modest JD.  Find this call and read more about NEPSA at its web home.

---

2020 ANNUAL MEETING

Hilton Mystic, Mystic, Connecticut

April 23-25, 2020

CALL FOR PROPOSALS

The New England Political Science Association invites proposals for papers, panels, and roundtables to be presented at its 2020 Annual Meeting, which will convene April 23-25 at the Hilton Mystic in Mystic, Connecticut. Panels will be offered on Friday, April 24, and Saturday April 25; a pre-conference welcome event will be held on the evening of Thursday, April 23.

In NEPSA’s 72^nd year, we continue to welcome a broad array of panel and paper proposals reflecting the various subfields of our discipline.  NEPSA has the following dedicated sections:

• AMERICAN POLITICS

• COMPARATIVE AND CANADIAN POLITICS

• INTERNATIONAL RELATIONS

• POLITICAL THEORY

• POLITICS AND HISTORY

• PUBLIC LAW

• PUBLIC POLICY

• TECHNOLOGY AND POLITICS

Proposals from undergraduates will once again be considered for presentation.  Undergraduate proposals will be evaluated on a competitive basis by a special Undergraduate Proposals Committee.  Accepted proposals will present on panels dedicated to undergraduate research; presenters must be accompanied at the conference by a sponsoring faculty member.

Proposals for individual papers, full panels, and roundtables – as well as offers to serve as panel chairs and/or discussants – may be submitted via the NEPSA website: www.nepsanet.org. Please scroll to “2020: CONFERENCE” in the menu bar for the drop-down links to submit proposals. Except in special situations, individuals are restricted to two paper presentations.

The deadline for submissions is Friday, November 29^th, 2019.

Questions about the conference and requests for further information may be directed to NEPSA’s Executive Director and Program Chair, Steven Lichtman (Shippensburg University): sblichtman@ship.edu.

Dive boat company petitions to limit liability under maritime protection law

The diving boat MV Conception burns off the coast of Santa Cruz island, California. Photo released by the Santa Barbara Sheriff's Office.

Expectant defendants in the horrifying case of the California dive boat fire have petitioned the U.S. District Court to limit their liability exposure under the Shipowners' Liability Act of 1851, 46 U.S. Code § 30505, et seq.  (Hat tip to my Torts I-II alumna, Mara D. Fox, UMass Law J.D. anticipated 2021, for heads up on this story from KTLA 5 Los Angeles (see also L.A. Times).)

Bringing this filing to light is not to knock the petitioners.  Their legal move is smart and routine.  But it raises to light one of the many historic and arguably anachronistic legal liability limitations that are allowing seagoing corporations effective immunity from tort, and therefore impunity in practices regarding physical safety, worker rights, and environmental protection, as just recently rounded up by Hasan Minhaj on Patriot Act.

Deepwater Horizon families visit Congress, 2010. (Nancy Pelosi CC BY 2.0.)

The Shipowners' Liability Act played its part after the sinking of the Titanic, as KTLA coverage observed, and more recently in the 2010 disaster when the Deepwater Horizon exploded in the Gulf of Mexico (movie; recent coverage; documentary by BBC, James Fox, NatGeo, PBS; report on litigation settlements).  A 2011 Senate bill would have amended the Shipowners' Liability Act, Death On the High Seas Act, and Jones Act to restore wrongful death claims; the bill died in committee.

An excellent overview of the liability act can be found in the background of a comment by Christopher S. Morin, The 1851 Shipowners' Limitation of Liability Act: A Recent State Court Trend to Exercise Jurisdiction over Limitation Rights, 28:2 Stetson L. Rev. 419 (1998).  Morin, a U.S. Navy veteran and now a Florida attorney, explained (at 422, footnotes omitted):

The primary impetus for enacting the Limitation Act was to promote American shipbuilding, commerce, and investment in the merchant marine industry, placing the United States shipping industry on a more competitive footing with those foreign countries already benefiting from forms of limitation. Before comprehensive insurance protection, it was important for investors and owners to have the security that their liability would not exceed the value of their investment—namely the value of the vessel. Thus, in its most basic form, the Limitation Act permitted vessel owners and bareboat charterers to limit their liability to the vessel's post-accident value.

The act was successful for its time, Morin wrote.  But "[m]ore recently, many"—"[c]ourts, lawmakers, and environmentalists alike"—"have criticized the Limitation Act as an outdated and unnecessary tool in the modern insured maritime industry" (p. 423, footnotes omitted).

Here from the Free Law Project is In re Truth Aquatics, Inc., No. 2:19-cv-07693 (C.D. Cal. filed Sept. 5, 2019).

Colorful CUNY comics teach environmental law, policy, and social justice for all ages

Comic books are not new to legal education, but the Center for Urban Environmental Reform (CUER) at the City University of New York Law School is trailblazing.  Among the fabulous contributions to the recently published The Media Method (CAP), a book about popular culture in legal education, is a chapter by CUNY Law Professor Rebecca Bratspies and her artist-collaborators, including Charlie La Greca.  They are using comic books to reach kids, and, well, me, to talk about environmental conservation and climate change.  They made a video, too, about the project:

When I saw Professor Bratspies at the SEALS conference in July, she gave me a copy of her most recent creation, Book 2 in the Environmental Justice Chronicles!: Bina's Planet.  Suffice to say, it's another hit.  No spoilers, but I was hooked from page one, when heroine-everywoman and high-school-soccer-star-alumna Bina returned to her school-stadium pitch, where, implicitly, young women's soccer reigns supreme.  She goes on to save the day with her colorful cohort, demonstrating en route best practices in youthful social activism à la Greta Thunberg or Xiuhtezcatl Martinez.  I love that Bratspies elevated the tale to the planetary level, making it simultaneously descriptive of the supranational threat and artfully suggestive of trending science fiction by black women writers (see also Terra Nullius).

Bina's Planet is not yet online, but is available in paper from CUER for public education projects.  While you wait for mass dissemination, catch up with Book 1, Mayah's Lot, available to download, or watch and listen online:

Incidentally, for a related CUNY workshop on the Freedom of Information Act in 2018, Bratspies, La Greca, et al., produced a pamphlet-sized special appearance of Mayah on the FOIA.  I have a copy, but cannot find an image in circulation.  I hope they'll put it online in the future.