Nutter Litigation Bulletin, Fall 2014

ERA OF THE GANTS COURT BEGINS

On July 28, 2014, Ralph D. Gants was sworn in as the Chief Justice of the Massachusetts Supreme Judicial Court (SJC). Chief Justice Gants had been appointed a Justice of the SJC in 2009, and for twelve years before that had served as an Associate Justice of the Superior Court. For many years, Chief Justice Gants has distinguished himself with his integrity, intelligence and dedication. The Massachusetts judiciary is fortunate to have him as Chief Justice.

SJC CURTAILS RIGHTS OF PROPERTY OWNERS

Glovsky v. Roche Bros. Supermarkets, Inc., 469 Mass. 752; 2014 Mass. LEXIS 791 (2014).

Steven Glovsky wanted to be elected the Governor's Council member from District 2. Glovsky sought to solicit nomination signatures outside the entrance to a standalone supermarket in Westwood owned by Roche Bros. He was told that Roche Bros. prohibits such activity. Glovsky filed an action claiming that the supermarket had violated his right to equal ballot access secured by article 9 of the Massachusetts Declaration of Rights. The majority of the SJC held that the complaint stated a claim for declaratory relief that a candidate for public office has a state constitutional right to solicit nomination signatures on the private property of a stand-alone supermarket.

Justice Cordy wrote a compelling dissent. He noted that, prior to this case, the balancing of an individual's right to solicit and the landowner's right to use his property for commercial endeavors without such interference turned on the established distinction between a shopping mall which is intended to be the functional equivalent of a traditional downtown and a stand-alone store that is not. Justice Cordy criticized the majority's departure from this functional equivalence test applied in its carefully reasoned precedent, Bachelder v. Allied Stores Int'l, Inc., 388 Mass. 83 (1983). This test had commanded "the overwhelming national consensus on the proper balancing of rights where a limited right to solicit signatures on private property is recognized." Justice Cordy added: "By failing to recognize the enormous differences between large shopping complexes that duplicate traditional downtown functions and free-standing stores selling multiple products, the court completely undoes the intended balance between the rights of property owners and the rights of those whom they invite to use their property, and creates serious consequences for property owners who miscalculate their obligations despite their best intentions."

The opinion seems to suggest there was a real need for Glovsky to be able to solicit signatures at this particular location. It states that Westwood was near the geographic center of District 2; that the Roche Bros. store is the only supermarket in Westwood; that Westwood's population was 14,330; and that "[i]n many rural and suburban communities, the local supermarket may serve as one of the few places in which an individual soliciting signatures would be able to approach members of the public in large numbers." It reads as if the Court thought Glovsky needed to obtain all of his nomination signatures in Westwood. Of course, that was not the case. Glovsky needed 1,000 signatures of registered voters from anywhere in District 2. Indisputably, he would have had "reasonable access to the public" without seeking signatures at the Roche Bros. supermarket in Westwood. As was pointed out in the amicus brief filed by the New England Legal Foundation and six other amici, District 2 is "a sprawling irregularly shaped area comprising all, or parts of, thirty-nine cities and towns spread across five counties." Furthermore, amici noted, District 2 is home to at least five malls with an average of 150 stores each. Finally, the majority seemed to ignore or at least dismiss the physical differences between malls and stand-alone stores. The former have numerous entrances and exits and individual stores from which customers spill out into large areas designed for pedestrian traffic. By contrast, a stand-alone supermarket, for obvious security purposes, aggregates its check-out cashiers in one area that must be transgressed before exiting, limits the means of egress to a small area behind the cashiers, and provides exit doors, usually automatic, that require customers to pass through in single file and empty into small areas not conducive to congregating.

RECENT DEVELOPMENTS IN EMPLOYMENT LAW

New Massachusetts Statute Requires Employee Notification of Domestic Violence Leave Rights

On August 8, 2014, Massachusetts enacted an emergency law requiring, among other things, that employers with fifty or more employees notify each employee of substantial, newly created rights and responsibilities relating to domestic violence leave. G. L. c. 149, § 52E. This statute thus creates a need for immediate action by covered employers.

The new law requires that covered employers permit their employees to take up to fifteen days of leave from work in any twelve-month period whenever the employee or the employee's family member is a victim of abusive behavior and the leave is used to (a) seek or obtain medical attention, counseling, victim services, or legal assistance; (b) secure housing; (c) obtain a protective order from a court; (d) appear in court or before a grand jury; (e) meet with a district attorney or other law enforcement official; (f) attend child custody proceedings; or (g) address other issues directly related to the abusive behavior against the employee or family member. Employers have sole discretion to determine whether such leave will be paid or unpaid. Also, employers can require that an...