News + Insights from the Legal Team at Zalkind Duncan & Bernstein

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Free From above of stylish interior of modern conference hall with comfortable chairs and oval table Stock PhotoShow-cause hearings, also known as clerk-magistrate’s hearings, are a unique feature of the Massachusetts legal system, offering many of those accused of criminal conduct but not arrested a chance to privately contest charges before they publicly issue, thus potentially avoiding the expense, uncertainty, and reputational harm associated with a formal court proceeding. Established by statute under G. L. c. 218, § 35A, the main function of show-cause hearings is to assess whether probable cause exists for the criminal charges—usually solely on the basis of a police report attached to the application for a criminal complaint. Probable cause is a low legal bar—much less than the “beyond a reasonable doubt” standard applied at trial—but the Supreme Judicial Court (SJC) has also held that clerk-magistrates also have the discretion to “screen” or “mediate” charges that may be supported by probable cause but do not belong in the criminal justice system. 

Unfortunately, in Cabrera v. Commonwealth the SJC took a step backwards with respect to the protections offered by show-cause hearings. The case began in summer 2020, when police officers responded to a noise complaint and encountered the defendant, who, according to the police, was intoxicated and had a handgun visible in one of his pockets. Although the handgun was properly licensed, police sought a criminal complaint under G. L. c. 269, § 10H, which bans possession of a loaded firearm while intoxicated. In fall 2020, a clerk-magistrate held a show-cause hearing and found no probable cause. This ruling was based on a mistaken reading of § 10H as requiring the possession to be in a motor vehicle.  

The statute establishing show-cause hearings does not include any mechanism for review or appeal, but the SJC has held that a judge has inherent authority to revisit a decision not to issue the complaint if requested. In Cabrera, neither police nor prosecutors requested such a redetermination to correct the magistrate’s mistake about the meaning of § 10H. Police, however, had confiscated both the defendant’s handgun and his license to carry after the incident, and did not return them. Two years after the hearing, the defendant went to the police station at least three times to demand them back; police refused to return his belongings. At one point, the defendant suggested that he might sue the police department. Soon after these encounters, in May 2023, the same police officer who filed the original complaint application filed a new one, based on the same incident in 2020. A different clerk-magistrate found probable cause and allowed the criminal complaint to issue, leading to the initiation of a criminal case. 

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Last week, the SJC decided City of Newton v. Commonwealth Employment Relations Board, a case considering what an employee must show to make out a prima facie case of retaliation under the Massachusetts public employee collective bargaining law. The week before, the MCAD decided MCAD and Nom v. Acton Auto Body Inc. et al., also assessing what evidence an employee claiming retaliation must show to make out a prima facie case.

City of Newton was brought on behalf of a Newton police sergeant who also served in leadership roles in his union. In those roles, he repeatedly came into conflict with the police chief as he asserted employees’ rights under their union contract. Two years after becoming the union’s president, the police chief involuntarily transferred the sergeant from a specialty assignment in the Traffic Bureau to the Patrol Bureau. In the Traffic Bureau the sergeant had worked a regular daytime schedule with weekends off; in the Patrol Bureau he had to work nights on a rotating schedule. The transfer came with an 8% pay increase for working nights, which the sergeant said was less important to him than the regular schedule he had before the transfer.

The union filed a charge with the Department of Labor, and eventually the Commonwealth Employment Relations Board (CERB) decided that the transfer was an adverse action, and that the City had not met its burden to show that the reason for the transfer was not retaliatory. The City appealed, and the Appeals Court decided that because the sergeant received the pay increase his CBA required, the transfer was not an adverse action.

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pexels-teju-14202489-scaledA group of Massachusetts lawmakers has introduced a bill this year that would require automatic sealing of many criminal records after specified waiting periods have passed from the end of the defendant’s sentence. The waiting periods have been part of the Commonwealth’s sealing laws for many years and, as we have previously written, were last amended in 2018, when they were reduced to seven years for a felony record and three years for a misdemeanor or delinquency record, provided the defendant has no subsequent convictions (sex offenses cannot be sealed for fifteen years or while the defendant remains required to register as a sex offender). But although the 2018 reforms made sealing more accessible, one estimate puts the number of applications for sealing at only ten percent of the total number of eligible defendants. The new legislation aims to dramatically increase the number of sealed records by eliminating the current petitioning process and automatically sealing records after the waiting period.  

Sealing a criminal record can be an important step in allowing former criminal defendants to access to jobs, housing, and other opportunities that are not available to people with a criminal record. After a record is sealed, it doesn’t appear on the version of the defendant’s CORI that an employer or housing provider would receive, but it remains available to courts and various state and federal agencies including law enforcement and child services.  

Under current Massachusetts law, former defendants whose records have passed the waiting period need to file a petition to the Probation Department to start the sealing process. The petition is free, but the defendant needs to know that they are eligible for sealing and submit the form, which includes identifying the correct statutory provision and attesting that the statute’s requirements are met. Some people’s records might also be more complex, such as those with a mix of eligible and non-eligible charges, which creates the added complexity of requiring a separate petition to the court that issued the charges. A separate petition is usually required if the defendant seeks to seal a record of a dismissed or dropped charge before the end of the waiting period (a process known as discretionary sealing).  

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Students wearing backpacks running toward the front door of the schoolSince 2012, Massachusetts laws have prohibited discrimination based on gender identity, including in education. The Massachusetts Department of Education has had longstanding guidance in place instructing schools to use students’ preferred names and pronouns while at school. This week, in Foote v. Ludlow School Committee, the First Circuit Court of Appeals decided whether a school policy that followed this state law and DOE guidance violates parents’ constitutional right to direct the upbringing of their child. The school won. CONTINUE READING ›

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Photo of a courtroomMore than forty-five years ago, the Massachusetts Supreme Judicial Court led the nation in combatting racial discrimination by prosecutors in jury selection. In its landmark decision in Commonwealth v. Soares, the SJC held that the use of peremptory challenges by prosecutors to exclude members of racial (or other) minorities from a jury violated a defendant’s right under the Massachusetts Constitution to trial before an impartial jury of his or her peers. Seven years later, the federal Supreme Court cited Soares in reaching a similar decision (under the principle of equal protection) in Batson v. Kentucky. Unfortunately, last week the Massachusetts Appeals Court took a serious step backwards in this area. Its decision in Commonwealth v. Lopez-Ortiz takes an artificially narrow view of what discrimination in jury selection can look like, and seeks to limit the power of appellate courts to correct it.  CONTINUE READING ›

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Photograph of the White HouseBy Anton Kernohan, legal intern 

Throughout history, the LGBTQ+ community has persisted despite repeated laws and attempts to restrict the community’s rights. Since assuming office, President Trump has undertaken the most recent iteration of actions that once again threaten the lives of LGBTQ+ persons, especially transgender, non-binary, and intersex individuals.  CONTINUE READING ›

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Girl playing tennisYouth sports are a huge part of the American education system, something many parents, schools, and communities place a high value on maintaining. Studies demonstrate the many mental, social, emotional, and physical benefits children derive from participating in organized athletics. In fact, during Trump’s previous presidency the President’s Council on Sports, Fitness, and Nutrition Science Board published a pamphlet noting that “Research shows that participating in youth sports can lead to immediate and long-term benefits for youth, their families, and communities.” By executive order and federal agency guidance, President Trump is now trying to deny those benefits to trans girls and women who want to participate in sports with the rest of their peers. The Massachusetts Declaration of Rights, Title IX, and Massachusetts anti-discrimination statutes prohibit schools, colleges, universities, and athletic organizations from following the new executive order. CONTINUE READING ›

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pexels-yankrukov-7640485-scaledThe nineteenth-century French philosopher Alexis de Tocqueville famously described the jury in the United States as “a free school which is always open and in which each juror learns his rights,” making it not only “the most energetic means of making the people rule,” but also “the most efficacious means of teaching it to rule well.” Unfortunately, the reality of juries is often somewhat more complicated. In particular, the risk of racial bias in jury deliberations has long been recognized, but efforts to combat it have run up against one of the most important features of jury deliberations: their secrecy.   CONTINUE READING ›

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Students wearing backpacks walking toward a building on college campus

In the last month, actions by the courts, the President, and Congress have significantly impacted and may further change how Title IX is enforced across the country.

Title IX: Background and Enforcement

Title IX is a federal law prohibiting sex discrimination in education. It is one of the shortest laws on the books, with the operative provision stating: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Laws like this can be enforced in two ways: through the courts and through administrative agencies. Individuals have a right to bring lawsuits under Title IX in court, where it is the job of the court to interpret what the law means. In addition, federal agencies has enforcement powers to investigate and address violations of federal law. For Title IX, that agency enforcement power rests with the U.S. Department of Education and the U.S. Department of Justice. People whose right to be free from discrimination in education have been violated can file complaints with those agencies, which can then investigate the educational institutions and impose corrective action, including the withholding of federal funds. The U.S. Department of Education issues regulations interpreting the laws it enforces and explaining how it will apply those laws when it engages in enforcement action. In 2020 the first Trump administration issued regulations overhauling Title IX enforcement; in 2024 the Biden administration issued a new set of regulations that was immediately challenged in federal courts in various red states. CONTINUE READING ›

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In 2014 voters in the Commonwealth approved a ballot measure that created the  Massachusetts Earned Sick Time Law (G.L.c. 149 § 148C) (MESTL), which guarantees most Massachusetts workers up to 40 hours of earned sick time per year. Last month the coverage of the law expanded to cover physical and mental health needs arising from pregnancy, surrogacy, assisted reproductive technology, or adoption loss.   

Who does the law apply to? 

The law applies to almost all employees whose primary place of work is Massachusetts. The regulations under the law define “primary” place of work as a place the employee works more than any other place; for an employee who works in multiple states it is the state in which she spends the most of her time. For example, if an employee works remotely for a company, and spends 40% of her time working from Massachusetts, 30% working from Florida, and 30% working from California, Massachusetts would be the primary place of work.   CONTINUE READING ›

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