This video captures a Massachusetts Appeals Court session featuring Justice Robert A. Brennan's final sitting before retirement, followed by oral arguments on three cases: Commonwealth v. Bland (criminal identification and search issues), City of Boston v. Salaried Employees of North America (labor arbitration and collective bargaining agreements), and Marissa M. Knight v. Department of Unemployment (unemployment benefits eligibility). The session demonstrates formal court procedures, including ceremonial recognition of retiring judges, time-limited oral arguments, and judicial deliberation on complex legal issues involving constitutional rights, labor law, and administrative law.
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Oral Arguments, June 4, 2026, Blake, C.J., Meade, Brennan*, JJ., presiding追加:
Hear me, hear me. All persons are made to do for an honorable justice of the appeals court now sitting with the commonwealth. Draw near. Give your attention. You shall be heard. God save the Commonwealth of Massachusetts. Court is now open. Please be seated.
>> All right. What'd you do to my chair?
We're having technical problems.
There we go.
Good morning and welcome to the appeals court.
My name is Amy Blake. I am the Chief Justice. To my right is Justice William Meade. To my left is Justice Robert Brennan.
Before we get started with today's list, as is our tradition, we are going to take a moment today to recognize our colleague, Justice Robert Brennan as he sits for the final time before his retirement.
Those of you that know me know I like to cry. I'm going to try not to do that now. In a moment, Justice me will offer some remarks and then I will do the same. At the conclusion of the remarks, we will pause briefly for those of you who wish to leave the courtroom before we call today's list. However, before I turn the mic over to Justice Me reluctantly, I would like to welcome Justice Brennan's family.
His dad, Judge Thomas Brennan, his mom Joanne, his wife, Judge Lyn Rooney, his daughters, Jesse and Ally, and I'm pretty sure that Annie, who's in Spain or Portugal or somewhere with a passport, is thinking about her dad right now. his sister Lynn and brother-in-law, Judge Pat Hagen. And unfortunately, Bob's brother, Judge Michael Brennan, is out of state today.
But we do know how proud Mike is of his brother. I would also like to take a moment to welcome members of the Supreme Judicial Court. I see Justice Wahhos and Justice Der, members of our appeals court, both current and retired judges and staff, trial court colleagues, and I know some of Bob's closest friends from his childhood and from his law school days have also joined us this morning.
So, welcome to each and every one of you. With that, I turn the mic over to Justice Me.
>> I have like 15 pages of material here.
So, if any of you are want to sit down, >> can we get the red light on? Tom, >> come's the timer on.
I'm very pleased to be here today at this special sitting, Justice Brennan's last sitting on the appeals court, even if my appearance is against the Chief Justice better judgment. I know the real reason why Bob chose me for this last sitting is that I don't rewrite his draft opinions.
They don't need rewriting.
Uh, I'm afraid I have to go off script script now and that might also concern the chief justice. But, uh, my original note stated that with Justice Brennan's retirement, it would it would bring to an end the long list of u Brennan judges in the Commonwealth, but you can tell from the introduction that my research was off and I'm sorry about that. So uh um now we can rest assured though that the continuity of judicial excellence will uh in the commonwealth will remain with with six or more Brennan or Brennan adjacent judges still still working among other judges as the chief justice noted is Bob's father Tom Brennan and I'd like to take a special note here because as I've told Bob his father is one of my heroes and he had an extraordinary career in public service and I want to thank him personally for Um although Justice Brennan joined us in in 2022, he'd already had 20 years of experience as a judge. Uh first I mean he was in the district court. Uh he served as regional administrative justice and he served as the first justice in the Salem District Court.
Justice Brennan often was featured in the Salem Evening News Puff Pieces. Uh it might have left one wondering if Bob was actually on the board of editors.
Those of us in the know actually knew accurately those those stories portrayed Bob's judicial excellence. Uh here at the appeals court, Justice Brennan has authored over a dozen published opinions and over 150 unpublished rule 23 decisions.
More time would only have with Bob here would have only improved our law more.
Um before all of that, Justice Brennan uh enjoyed a wonderful education from elite institutions like the University of Pennsylvania and BU Law School. But Bob is not an elitist.
He is Bob Brennan is a thoughtful jurist and colleague who never saw or treated the appellet world as merely an academic exercise. Rather, he had keen insight in how the operation of the law affects people's lives in the real world and the actual ramifications that our decisions have on people beyond those parties and in the individual case. He respects and plays well with his colleagues. Uh he is a consistent voice of reason, always quick to to help, and his scholarship, as I said, is first rate.
I'd also add that Justice Bren is a gentleman. I know this because uh he winces at most of the things I say be behind the scenes.
Selfishly for me, but also for the people of the Commonwealth, I'm sorry to see Bob retire. You made this court a better place, and for that we should all be grateful. I'm going to miss you as a colleague, but you're stuck with me as a friend.
>> Thank you, Justice Me.
>> Are you ready?
>> Okay, let's go. It's a lot.
>> It is a privilege to recognize and celebrate Justice Robert Brennan on the occasion of his final sitting at the Massachusetts Appeals Court. It's not lost on me today as I preside over this celebration that I would not be here without Bob. Why, you ask? 34 years ago, Bob was on an interview panel when I applied to be an assistant district attorney in Middle Sex County.
Notwithstanding Bob's objection, I got the job. As they say, the rest is history.
Today provides an opportunity not only to mark the conclusion of a distinguished judicial career, but also to re reflect on the extraordinary contributions Judge Brennan has made to the administration of justice throughout the Commonwealth. For decades, he has served the people of Massachusetts with intelligence, integrity, humility, and an unwavering commitment to fairness.
Judge Brennan's career has been defined by public service. from his years in private practice as time as a prosecutor through his long and respected tenure on the district court and ultimately here on the appeals court. He has brought to every role a profound sense of duty and respect for the rule of law. Those who have appeared before him have known him to be exceptionally wellprepared, thoughtful in his analysis, patient in his demeanor. I don't know if his girls would agree with that. thoughtful in his analysis and deeply committed to ensuring that every lawyer and every litigant is heard and treated with dignity. This is best exemplified by an anonymous comment on his Massachusetts lawyers weekly profile. It reads, quote, "Always feel as though my arguments are carefully listened to, considered, and weighed. He is always respectful of defendants. Keeps things moving along, but not at the defendant's expense.
can't ask for more than that." End quote.
As an assistant district attorney, Bob prosecuted Christopher Rearen. This was a shocking case. Rearen was a former church worker, YMCA instructor, and scout leader who raped and molested pre-adolescent boys over a 5-year period. Rearen ultimately pleaded guilty to 75 counts in a case described at the time as the state's worst case of sexual abuse. This was an impactful case for so many and Bob's patience, kindness, and professionalism culminated in a successful resolution for countless victims.
During his many years on the district court bench, Judge Brennan distinguished himself not only as an outstanding jurist, but as a leader and an innovator. As Judge me said, he served as first justice and regional administrative judge. He understood that courts serve not merely to adjudicate disputes, but also to strengthen communities and provote promote confidence in the justice system. His efforts to support programs aimed at reducing recidivism and addressing the underlying causes of criminal behavior reflected practical wisdom and a belief in the capacity of individuals to improve their lives. This is exemplified by the hope probation pilot program and the first court firearm session that cleaned up all pending firearm cases in the Lind District Court. Such initiatives have benefited countless people and have left a lasting mark on the Comwalth's courts.
During due to his attention to detail and commitment to getting it right, Judge Brennan was tasked by then Chief Justice Dolly of the District Court to oversee the Drager Alcatest 9510 breathalyzer litigation.
Over a period of five years, he spent countless hours hearing testimony, making findings and recommendations, all to ensure that the rights of defendants were protected, and OUI prosecutions were conducted in accordance with the law. But sitting in Salem brought some unique experiences to Judge Brennan, some of which made national headlines, including this one from CBS News. and I quote, "Salem witch gets protective order against Warlock." End quote.
This is a real case. Notably, Judge Brennan's order issued days before Halloween in Salem. I will leave it all to you to imagine the testimony that Judge Brennan had to sort through before making this decision.
On the appeals court, Justice Brennan continued to exemplify the highest traditions of judicial service. His colleagues value his careful attention to the facts and the law, his measured judgment, and most importantly, his collegial spirit. He approached every case with seriousness and rigor, understanding the profound impact judicial decisions have on the lives of families, communities, businesses, and the like. His opinions and contributions to the court's work have reflected both intellectual discipline and sound common sense. At the end of the day, Justice Brennan, Judge Brennan just wanted to get it right. Equally important has been Justice Brennan's generosity towards others. Throughout his career, he has served as a mentor, teacher, and role model to younger lawyers and judges. He has shared his experiences freely, offered guidance thoughtfully, and encouraged others to pursue excellence in public service. The influence of that mentorship will continue long after his retirement from the bench. While Justice Brennan's professional accompl accomplishments are substantial, those who know him best often speak first about his character. He has conducted himself with humility, kindness, and grace. He has earned admiration not simply because of the positions he has held but because of the way he has carried out his responsibilities.
His reputation for fairness, decency, and respect for all who come before the courts is among his most enduring legacies. As Justice Brennan concludes his judicial service, we express our profound gratitude for his many years of dedication to the Commonwealth and to the cause of justice. His contributions have strengthened our courts, enriched the legal profession, and enhanced public confidence in the judicial system.
It is truly a bittersweet day for me.
Sorry. As chief, I am losing a trusted and valued colleague. Personally, I will miss my friend.
One more paragraph I just have to get through. On behalf of all of those whose lives and careers he has touched, we thank Justice Brennan for his distinguished service. Wish him and his family every happiness in the years ahead. May this next chapter be filled with good health, fulfillment, and the satisfaction of a career extraordinarily well served. Please rise.
HEAT.
>> Justice Brennan.
Thank you, Chief. Um, folks, fortunately for all of us, the tradition here is that the retiree does not speak, but I have been given permission at least to say thank you. And so, first I I need to thank Chief Justice Blake and Justice Me uh number one for agreeing to sit with me because I get to pick this one. I don't always, in fact, never. Um, up till now. Uh secondly, for the extra thought and time it took on top of cases and work and everything else to say something about me, which I I mean I can't even I really appreciate it both of you. Um and tying into that um lastly for your mentorship and your friendship and you guys have both stuck with me too. So sorry one way or the other. Um so thank you. and to my colleagues here at the appeals court non-judicial and judicial I wanted to say thanks so much for all the support um for challenging me for collaborating um I can say without any doubt that the people here are exceptional and folks you made my work infinitely smarter and better and I cannot say thank you enough this is just um on all sides an exceptional group of people and it is a very very special place to work, which begs the question, why are you leaving?
And lastly, I suppose foremost to my family um and my two best friends who are here um who are always always always there for me and without whose love and support and inspiration u there's absolutely no way I'm sitting here today. So, um, I just that is a massive thanks to everybody. And having said that, and without overstepping, with the chief's permission, I'd like to say what I used to get to say all the time when I was in Discord and ran my own session.
Let's get to work. Okay.
I just work.
You are all welcome to stay, but I'm guessing some of you may not want to.
So, the panel will remain on the bench and I'll give you a few few minutes to leave the courtroom.
You >> okay?
>> I'm good. I'm good to go.
>> Yep.
>> You want to kick You want to kick them out for arguments?
>> No.
>> All right.
>> They want to stay. I They could stay.
>> All right.
That was awesome. Thank you so much. You go. Really? Oh, really? Thank you.
>> Thanks for letting me >> and it really wasn't cuz I know you aren't going to school with my stuff too much. Libby Libby told me you said that to the law. I said and she reminded me of it and I put it in this morning. It was good. It was good. I said they said, "Well, he doesn't get much comments." I said, "Well, I'm just saying.
There's more rewriting now than ever.
>> Where's she watch?
>> Sorry, guys.
>> All right. So now I'll do my regular introduction. We don't usually do that at every sitting and I don't usually cry at every sitting. Um so welcome to the appeals court. I know that most of you that have cases before us this morning have been here before but just to go over a few ground rules. Each side is permitted 15 minutes of argument. There is no rebuttal. I know that there are some time splits and I will address those as we call each case. Uh the first case is partially impounded. So council, I ask that you comply with the rules with respect to that.
I can assure you that we have read everything. So my best advice is for you to get right to your arguments. With that, if our timekeeper is ready, we will call our first case. Commonwealth versus Lawrence E. Bland docket number 25P905.
Attorney How. When you're ready.
Good morning and may it please the court Caroline how on behalf of Mr. Lawrence Bland. There are three main issues before the court today and I would like to start with the first one the identification of Mr. Bland by officer Karens which was prejuditial error. Um turning first to the error portion of the analysis. The error here is incredibly clear. um uh the fact that they had participated in the same youth baseball league 40 years prior is simply not the type of familiarity um that is going to assist the jury in uh their ability to assess the evidence for themselves.
>> Is that what the standard is though?
>> Yes, I believe so. under um if we're looking at PINA whether that testimony would assist the jurors in making their own independent identification and that's why we want there to be that type of sufficient familiarity and we look at if we look at cases like Commonwealth v Navvice where um kind of sporad >> I ask you can I just stop here it isn't really whether there's some basis to conclude the witness is more likely to be able to identify based on some familiarity >> whether there whether the witness possesses sufficient relevant familiarity with the defendant that the jury cannot also possess Yes.
>> And there's no bright line there, right?
So, it really is up to the discretion of the judge who's looking and listening presumably or or hearing an offer of proof on it to make a determination there.
>> Well, we can look at um cases like Bel Navvice where four to five years of sporadic contact is not enough to create that familiarity. And here we have a gap of 40 years and knowledge of a person when they were um a child playing youth baseball. They weren't even on the same team. These are not people who knew each other for 40 years. These are people who knew of each other 40 years.
>> When you say child, we're talking high school.
>> We're talking younger than high school.
You think?
>> I thought he didn't really know him in middle school, but then in high school and they played, he was a couple years old, played in the same league, went to his games, and when he saw him, it was like a click.
>> Well, so they weren't in the same grade.
They were not friends. They were not social. There's really no connection. I mean, when I when I hear youth baseball, I think the testimony was that it was a little bit younger than high school and that they were not in the same grade in high school. And again, if we're looking at this court and the SJC's case law, there needs to be something more that the jury who are sitting there looking at Mr. Bland throughout the course of the trial cannot also glean. So 40-year gap in that relationship is really not going to um assist uh the jury, and that's what we're looking for, that sufficient familiarity.
>> There were other identifications, right?
>> Detective York repeated officer Karen's identification, >> but Everett and and Miller both identified him, right? that that did not come in at trial.
>> That did not come in at >> both of those were excluded. So turning to the prejudice because again I think the error here is quite clear where the entire defense in this trial was identity or in Mr. Bland's case misidentification.
Bel Navvice Wdsworth tell us that um where that's the case that increases the prejudice of this type of um this type of testimony and where there's again not one but two witnesses repeating that identification. And that identification was not just um oh I recognize Mr. Bland. It it it was the catalyst for the entire investigation into him which included surveillance following him searching his car finding other items based on what was happening in the car.
So this can >> stop you for a sec.
>> So the defense called an expert right?
>> Yes.
>> And would you agree that the at least to some extent the expert on identification mitigated u any prejudice or some prejudice at least that on the identification by the officer? I mean, I think certainly he addressed that there are weaknesses with identification testimony, but >> and I'm not sure it was clear in the record, but do we presume that um officer, is it Karen or Karen was is white?
>> Yes.
>> Okay. So, the cross-racial aspect of it was discussed by the expert.
>> It was addressed by the expert, but again, where there's identification um being the central component of the defense, it's repeated by not one but two witnesses. It's a central portion of the Commonwealth's case. And again, police officer testimony. We know this is a greater imprint of authority coming from a police officer who is connecting the dots for the jury there.
>> But he connected the dots as a youth baseball player, not as a police officer. Right.
>> Right. But we know >> and the jury were instructed in accordance with the new model jury instruction regarding identification.
>> Yes.
But regardless, we know from PINA that even where the relationship is not based on their police work, the fact of them being police officers still adds prejudice. There's other corroborating evidence of his identification, right?
>> Well, so there was no other person who identified him.
>> Person person evidence.
>> There was other surveillance evidence.
There was other circumstantial evidence.
There was no direct evidence.
>> Well, there's also the surveillance tape came into evidence. Right.
>> It did.
>> So, the jury could look at it themselves.
>> And that is true of Bel Navas and Wsworth where there was um either uh prejuditial error or substantial risk of a miscarriage of justice found. So even in cases where the jury can do that assessment for themselves, that doesn't eliminate the prejudice.
>> But the the clothing and shoes found uh and the knife were were all uh linked to the crime, the robbery itself. Right.
>> I mean, I think those were certainly circumstantial pieces of evidence.
>> Yeah, that's what I'm saying. They're corroborating pieces of identification evidence.
>> Well, I think that they're right there, but there's no direct evidence in this case. And where, for example, in Bel Navas, there's not a very strong case without this identification. It's certainly not a slam dunk case. That's where the prejudice really comes into play here. And we have the Commonwealth in closing making a very suggestive argument that as long as you, the jury, determine that officer Karens recognized Lawrence Bland, not because he's the person who committed the robbery, but because he recognized him as the person in the photo.
>> Didn't they also say at transcript 5, page 57, that the jury could quote give very little weight to Karen's identification? I mean, I think that the Commonwealth had to acknowledge that there were issues with Officer Karen's identification, but it's bolstered by the fact that Detective York repeated it during testimony and that it was very obviously trusted by him to be the catalyst for the investigation. He would not have surveiled Mr. Bland and and gone on to follow him and done all these other things had the police not um believed officer Karens. And I think that could not that fact could not have escaped. He does. He does. Karen does testify that he identified him. Right.
So that's evidence, >> right?
>> Right. And that's what >> that's evidence that points towards the defendant's guilt and that's what prosecutors do in closing arguments.
They point to the evidence that uh that shows the defendant's guilty.
>> I mean, certainly. And that's the problem where it's erroneously admitted.
And this was prejuditial error because it was preserved. It was brought to the trial judge's attention that this was potential error. And and again, a 40-year gap in the relationship is the type of evidence that should not be coming in.
>> Is it your council um did the defense council make that argument to the jury?
>> I believe that there was in closing an argument about the weaknesses to officer Karen's testimony, but again, where it's central to the Commonwealth investigation and where you have two police officers repeating this testimony, we know that that is going to make an impression on the jury. Um and then we know that from Bell Nav and Wsworth where again the jury could have in those cases assessed the evidence themselves. But nevertheless, this court and the SJC said this is prejuditial error. This is this is too much. This is the jury is going to have should not be having the dots connected for them. The jury should be making this type of assessment themselves.
>> Is it your position that anyone looking at I think it was the golf video, right?
There was the back door video with head clothes and there's a golf video that had the face.
>> Yes. Yes, that anybody looking at that and then seeing your client could make that connection pretty much immediately.
>> I mean, I I think the same is true of Bel Navis and Wsworth where >> that is your position. I just want to clarify that that is your position that it's sufficiently clear and and the face is sufficiently um visible that anyone looking at that video could then look at your client and say, "Oh, same guy." I mean, I would I would not say that that is the conclusion that they would come to, but I think they could certainly weigh that evidence for themselves, and that's the jury's task. That's why we leave it to the jury, and that's why we don't admit this testimony without that sufficient familiarity.
>> In the interest of time, can you tell me why the search isn't a valid inventory search?
>> Yes, of course. So um when we look at inevitable discovery um we look at first the inevitability of what actually of of of what could have happened and then we look at the severity of the constitutional violation of what actually happened. So in terms of an inventory search I'm assuming you're referring to the policy which is where a motor vehicle is removed at the direction of the Barnstable Police Department. Here obviously it was removed at the direction of Mr. Bland.
He was the one who wanted his car removed.
>> So can I just jump in for a second on that unless did you did that answer your question? What are the police supposed to do when they take it to the private lot where they tell your client they're going to bring it and there's a sign that says violators, no parking, violators will be towed at their own expense. I mean, they can't leave it there. Right.
>> Right. So, we know from Lieutenant Melon and Detective Kelly's testimonies that they don't believe that there is um a private lot available. And so, at that point, Detective Kelly cannot be making an agreement with uh with Mr. Bland, cannot be making that reasonable alternative. I'm agreeing this is lawful and practical while also knowing I'm not actually going to park the car. And the problem with that is that there was an opportunity for another reasonable alternative. We know from Alivera that SJC has contemplated that calling another licensed driver to come take the car away.
>> Did your client ask for that?
>> Well, he didn't because Detective Kelly um agreed to park his car.
>> But you're you're inferring that the detective had some nefarious idea when he said he was going to move it to that lot. What evidence is there in the record that he did that? so that he could later search it.
>> Well, so number one, we have the search that happened without any justification, but number two, we have the fact that he knows that um there there were no private lots to park it.
>> How do we know that from this record?
>> So, looking to the transcript um of the motion hearing uh part two at page uh 34 and 35.
>> What volume are you in?
>> Uh two the second uh page 34 and 35. I was going to have Lieutenant Melon essentially take over there. He would handle whether their car was going to be towed. So, Detective Kelly doesn't believe that this car is going to be parked lawfully. And Lieutenant Melon specifically testified the car couldn't be parked lawfully. And so, at that point, Detective Kelly um under Gonzalez Mendes should not be telling Mr. Bland, we have an agreement for me to park your car because he knows that it can't be parked lawfully. And so, at that point, he either has to tell Mr. Bland, you know, we're going to have to do something else or we're going to tow your car. And at that point, Mr. Bland had made it very clear he doesn't want his car towed. He's incredibly motivated to offer another alternative. And we know from Alivera that calling another licensed driver is completely valid.
>> So, as far as the police going into the console, does your client telling the police that there's marijuana in the console impact our analysis at all, or should it?
>> No. And that's because it's he says it's a small amount of marijuana. when Detective Kelly gets in the car, he's not smelling marijuana. Um, that's certainly not a common an argument the Commonwealth has ever advanced or that the motion judge uh considered and I think for the very reason that it was a lawful amount. But when we look at the um severity of the constitutional violation here, we're not looking at what could have should have would have happened. We're looking at what actually happened. And here we have uh we know this is not an inventory search and that's because Detective Kelly is saying, "I want to get the car out of here as quickly as possible." There's nothing in plain view. It's in the center console. We know that uh Mr. Bland is not within arms reach of the car and certainly not returning to the car. He's going to the police station.
We know there's no probable cause to search the car. The automobile exception doesn't come in here and there's no safety concerns. So we know that there's no um constitutional reason for Detective Kelly to hop in the car and start digging through the center console. And so under Commonwealth Vconor, we're looking at whether the police acted in bad faith here, whether they accelerated the discovery of the items. And Detective Kelly specifically testifies volume two um page 36 that he was searching the area where Mr. Bland could have reached for. That sounds an awful lot like a search incident to arrest. But we know again Mr. Bland's not within reach of the car. And we also know Detective Kelly is specifically not telling Mr. Bland he's under arrest because he wants to get a statement out of him. So he's not informing Mr. Bland is under that Mr. Bland that he's under arrest for a really specific reason. And so that is going to add to the egregious nature of the severity of the constitutional violation.
>> You don't dispute that your client was in custody.
>> I do at that point.
>> So let me ask you this. If they're driving as they did in the cruiser back to the station, they start questioning him without Miranda, you're okay with that?
>> So at that point when he got back to the station, he was placed in >> No, no. I'm saying assume for the moment that they started questioning him in the cruiser as they're driving back. Would you be conceding that Miranda was not required at that point after they stop him, give him an exit order, maybe say it's your choice, but put him in the cruiser and say we're going back down to the station to talk.
>> So I I don't think Miranda's required, but Miranda was provided.
>> Was provided, which might also then be another signal to someone that not necessarily free to leave objectively, reasonably.
>> I mean, I don't think that providing somebody with their Miranda rights means that they're under arrest. We know that.
So he was definitely seized. He was given his Miranda rights, but every other factor when we look at whether a person is under arrest is not present here. He's not placed under handcuffs.
Detective Kelly is not following procedure. He's, you know, >> a reasonable person think they're free to leave when they're in the backseat of a cruiser.
>> I think a reasonable innocent person who's told you can go back to the station with us for questioning. Would definitely believe that.
>> But would he would a reasonable person think that they could leave when they're already in the back of the cruiser? So I think had it been you must go back to the station with us. We have some questions for you. Then that would be a different situation than the one we have here where he is uh asked whether he wants to come back and make a statement.
He doesn't know what it's about. He he has not been told this the subject of the conversation. He's not been handcuffed. He's not been patrised.
>> I'm going to guess he knew what it was about.
>> Sorry.
>> I'm going to guess he knew what it was about.
>> Well, I mean I think we're looking at the standard of a reasonable innocent person here, right? That's we know from Quinto's Q. It's a reasonable innocent person whether they would think that they were under arrest. Um and so >> on the duplicative convictions you make an argument that it's both um it's duplicative of both armed robbery and lararsy from a building but lar from a building has a separate element and in your prayer for relief you just asked that his conviction for lararseny over be vacated. You're you're that's all you're asking for right? Not the lar from a building.
>> Yes. Larseny over 1,200. And it's for the simple fact that the over 1200 is not a separate element.
>> We don't need re-sentencing.
>> No.
>> Okay.
>> Um if there are no further questions, um I would just ask that this court grant Mr. uh Bland a new trial and uh reverse his conviction for lararseny over 1200.
Congratulations, Justice Brennan. Thank you.
>> Thank you. Council attorney Sweeney.
Good morning. May it please the court.
Elizabeth Sweeney for the Commonwealth.
Addressing the first issue, identification. The trial judge properly allowed the identification of the defendant by officer Kairens. Officer Kairens identified the defendant not because of his role as a police officer, but because he had known him as a Barnesville student, athlete. They went to high school together. The defendant was a year older than him. they played in the >> brief. You don't address Bel Navvice at all. So, can you address it now?
>> I think that it's distinguishable from this case like with the uh the >> I don't think that we can clarify a term of years as far as somebody identifying somebody. I think that it goes to weight, not necessarily admissibility.
>> Well, in that case, it was four to five years, right?
>> Yes.
>> But what if here they had graduated from high school three years ago? Would that be different? Would it be different if it was 10 years ago? Where's the line?
>> So again, I I don't think that it's a term of years. It's the amount of interaction or um participation or observation or how well um how frequent you've seen this individual.
>> Do you think some sort of exploration is necessary in terms of the subjective ability of the witness to remember things? I some people remember every little detail from 40 years ago and other people it's kind of a big blur and the big stuff pops out but >> or is it an an objective test?
>> I think that it would be an objective test as well as addressed in the uh instruction about um whether or not somebody can ID somebody. The jury was properly instructed with a very comprehensive instruction about weighing how long it's been since this person has last seen um the defendant, which was admittedly 40 years, a long time. But he did have opportunity to go to his baseball games. He said he was a good baseball player, observed him, was, you know, essentially, you know, >> seems like he identified him almost instantaneously.
Um, notwithstanding the 40 years. Do we have any cases that speak to that?
>> I could not find any cases about um the time of how long it took somebody to ID somebody. I do agree that it was um it was somewhat instantaneously. So, it was on his phone. when he said he zoomed in on the picture and could see his uh jawline and nose is what stood out to him and then at that point it clicked in his head uh that it was the defendant Lawrence Bland. That's on volume 3 page 88 when they explore that issue. So >> what's what's the closest published case we have to these facts?
I think that uh Vasher Henley Pena um Vasher was very instructive in Henley about the fact that it's a police officer not testifying as the fact that he's a police officer but identifying somebody and that the fact that he's an officer IDing someone isn't overly prejuditial >> when we look at prejudice you don't dispute that the defense here was ID >> I'm sorry >> the defense was identification I mean that was the focus of the defense clearly >> that was the focus that was the defense throughout the entire trial which the jury heard from the defense expert who explored that issue that was vetted in the prosecutor's uh closing as well as the defense closing and that very comprehensive instruction by judge Pisc.
>> Having said that, to the extent that we were to find that the identification by officer Karens was not permissible, that would heighten at least it seems to me the uh concern as far as any prejudice.
No, >> if for some reason the court did find that which the Commonwealth is not conceding, I'm sure you're not. And just for the record, um there is overwhelming evidence of guilt in this case and the jury again was instructed that they could weigh the time of that ID. So I think that would mitigate prejudice as well. Here there was the yellow knife, the red sneakers, the champion clothing.
The defendant admitted after he gave the statement to the police that he was in the area that evening. he was familiar with the area and the jury could also view the surveillance video which in the still photo which um as a prosecutor looking at it was actually a very clear video where you can see the defendant's face in the golf course camera on the right hand side passing through. He has no mask on at that time. I know this court has seen the video, but again you can see um his face, his nose, his um skin color, and then in the video when he's robbing the party freeze, you can see his demeanor, his build, and then there's the video of him going. So, do you think that the uh conclusion if one were to draw it that if you look at the video, which I believe we all did, I I know I did. Um it's pretty clear.
>> Yes.
>> That that helps you or that hurts you in terms of whether the judge should have exercised discretion to permit the police officer to testify about the identification, his identification. I think that it would it would help the the Commonwealth because the jury has the opportunity to view those videos and make their own determination. There's no testimony that the defendant since the time of his arrest and trial had changed his appearance, gained weight, um had you know, >> right? But isn't the question whether the witness is likely um some basis to conclude the witness is more likely to be able to identify the defendant than just someone looking at the video and looking at the man sitting in the chair.
>> Yes. The >> right. So if it's patently obvious, how does that help the how does that help the factf finder? I think that it's a matter of weight, not admissibility, and the uh familiarity with the the uh defendant. And that goes to weighs that for us.
>> I'm sorry.
>> Do you have a case that might say that for us?
>> Um I would again cite to Vasher or Henley. the uh as far as weight not admissibility, I it would go to the jury weighing that as far as that very comprehensive instruction um that they could weigh the time frame that he had last seen him approximately 40 years.
>> So, if we can switch to the search for a minute um why wasn't this a ruse by the police officer to get in that car >> to say he was going to park it for him knowing that he couldn't park it there?
There's nothing in the uh in the transcript or the record to suggest that in viewing it with this very fluid car stop of the counter surveillance observations the stop on a um on a a main road in Hyannis in June significant amount of traffic on the Cape at that time and they have him exit and they ask him do you want to go with law enforcement or do you want do you want to talk with us? He agrees. And the dynamic in the testimony between Kelly and then Lieutenant Malin, Kelly being a detective, Lieutenant Malin being of a higher rank than him, it appears as though that he was overruled as far as, you know, we can leave it here in this area where there's a sign. Um, >> are you able to point to that in the transcript? Because attorney How pointed, seems to me, to a place where it says, well, it was already foregone conclusion. They knew what they were doing. And if you can't do it now, it's fine. I don't you to talk about. So, >> I would um just point the court to the testimony of uh Lieutenant Malin and Kelly on hearing volume uh 247 and volume 339. And Kelly moved the defendant's vehicle to the parking lot as the vehicle was causing traffic issues and it was impractical to conduct an inventory search at that location.
Kelly did previously tell him that the police weren't going to tow the vehicle and then Lieutenant Lieutenant Malin made the decision after that to move the vehicle. So, it appears, >> okay, >> that there could have been a developing um traffic issue at that point and the lieutenant overruled the detective.
>> If the police told the defendant that they were going to park his car as opposed to have it impounded and towed, yes.
>> Does that impact our analysis on whether um the defendant asked for a reasonable alternative to towing?
>> No. when looking at Olive Vera and reviewing the facts of this case, I I think that they're distinguishable where there while he did make that comment to him about, you know, we'll let you move it. At that point with the the traffic, the sign, there's no parking spaces downtown Hyannis in June. Um they it was in front of the Manug law firm and there there wasn't any valid parking. I think that the lieutenant was um in the right to say we're going to go and take this back to the to the police station. It was a very fluid situation which I think is distinguishable.
>> And why do they dive right into the console?
>> I'm sorry.
>> Why do they dive right into the console?
I mean before I mean it doesn't appear like a lot of time went by. Pull the car on the lot, get in the car, go in the console.
>> The record was uh devoid as to the uh facts as to why he did lift up the console. There is the comment about, you know, I have marijuana in the car and the analysis for as this court is very familiar with the two-part test, as Judge Pasquali found, there's no bad faith or intent to speed up the inventory search. The reason why he opened up the console, I suggest, isn't clear in the record, but there is the comment about marijuana. I don't believe that that was argued by the Commonwealth in the lower court. Um but um that testimony was uh heard by the judge and the judge found that there was no bad faith and no reason to believe that there would be any evidence of the robbery in the car. There was no um actions towards bad faith and conducting the speeding up the search if you will.
Uh based on I'd say okconor subordone and um and th those cases.
>> You agree we don't need to reentence?
>> I agree that we do not need to resent.
So, why did the police have to use the term counter surveillance? Wouldn't they have just described what was happening?
I mean, if I have a police officer behind me and I'm worried that maybe I went like 26 into a 25, I'm doing counter surveillance when I'm looking in my rearview mirror.
>> Yeah, I did that up Route 3 today.
>> So, this is a really good training point for police officers. This creates an appellent issue, counter surveillance.
He was looking. We all look when a police officer is behind us. I think it's an interesting issue. I uh did find we do I did find >> that's the best short of concession uh I've heard in a I think in a long time.
Well done.
>> I w when I was reviewing this issue and I was trying to compare it to for example if a police officer sees a handtoh hand they're describing what they observe their observations and that's consistent with uh you know drug distribution. And here the counter surveillance is what they observed and what they had trained on. Um perhaps >> I mean we get it right. He allegedly committed an armed robbery at the ice cream stand. All of a sudden there's four police officers. But why infuse something like counter surveillance into a trial? If I think that just looking in the mirrors, that's different from what we have here where he's driving down the road, going down to Cape Cod Hospital, taking a right, going down to the beach, turning around, going back up, and driving very slowly and evasively versus if they were >> they teach judges to do that when we think we're have being followed home by somebody who's not happy with us. So, I guess we're doing counter surveillance, too.
>> I think that the the term in this set of facts was appropriately used in with the >> I'm not getting to the question of error. I'm just saying as a practice tip. I don't like that word.
>> I will certainly take that back to my office.
>> It's consciousness of guilt.
>> Yes, >> exactly.
>> But I I don't think that it was overwhelmingly prejuditial. I'm not going to concede that it's prejuditial at all. It's their observation and there's a there's a technical term for it of what they're trained to see.
>> And if that's what the prosecutor said in their closing argument, great. Here are the facts. And what was that? That little counter surveillance going on. I think we're all good with that. But okay, I think point is made. Thank you.
Um if there are no further questions, I uh rest on my brief and congratulations again.
>> Thank you very much.
>> Thank you. Case is very well argued. It is under advisement.
>> All right. Our next case is the city of Boston versus salaried employees of North America local 9158 and another.
Now, as folks approach, I just want to be clear.
Appalance are splitting their time 12 and three. 12 for the city, three for AFSCME, and there's only one appel, but you're splitting your time.
>> No, your honor, we're not splitting our time. I am here to assist with the issue of declarative judgement as necessary.
But I see my >> Well, but see that's the problem. You get 15 minutes. You've said 13 and two.
So 13 and two.
>> So for 15.
>> All right. Let me just when we switch things on the fly, I got to make sure our time keeper is okay. So ar just do 15.
>> Okay. No problem.
All right. So, for 12 minutes, attorney Bushy, am I right?
>> That's correct.
>> Good morning.
>> Good morning. May it please the court.
Um, my name is Renee Bushy. I'm the director of the Office of Labor Relations for the City of Boston. Um, I have some foundational um, background points that I'd like to focus on. Um, >> before you do that, I I have to ask you a question. I don't understand something. Well, there's a lot of things I don't understand, but in this case, what I don't understand is the argument that if the arbiter's award stands, it violates the CBA. Can you explain that to me?
>> If this this arbitration award stands, it violates the the asks me the other party's CBA.
>> That's what you say at page six of your brief that it will require the city to violate the CBA. And I just don't understand. this I think I can my my foundational points are if you let me will directly address that.
>> So I'll give you a minute. If they don't I'm going to move you to them.
>> Um the inspectional service department of the city of Boston enforces building and safety regulations. Um ASME who is a party to this represents the building and plumbers inspectors and they have collective bargain agreements with the city of Boston. Article one um in the recognition agreement with the CBA, their their contract is big and is in several departments, but um I did um at the record appendants 271 and 274, it includes the title of building inspector and plumbing inspector. So that means in labor law that not just that person but that title in that work is covered by the contract with ASME. It's perhaps easier to see in the IBWS a smaller contract very clear the um recognition clause lists the electrical inspectors at >> I'm not sure you answered Chief Justice Blake's question but if you did fine I'll ask mine and if not maybe so but maybe >> maybe give it another shot. All right let me ask you a question then if I could. Given the overlapping work assignments, how could um an arbitrator interpret the Cena contract without in some way some way touching upon the ASME or IBW contract?
>> So I mean I'm still getting to the the bargaining unit work that's >> we read it. I mean we we read it we so I think we get the foundational piece of it. I think these are questions that hopefully focus our analysis a little bit better. So plumbing and building inspectors, their work is covered by the ASME contract.
>> The supervisor's work is covered by the Cena contract.
>> So that is bargaining unit work covered by that for a Cena arbitrator has authority under that contract. Anything that's in Cena's contract and it's limited by the limits of Cena's contract. So by the fact that I don't think that anyone will deny that the plumbing and building inspector work is covered by ASME's contract that they've gone beyond that authority.
>> The CBAs don't talk about third party overtime at all. Right. They just talk about overtime.
>> Well, I mean I would point out that regular overtime and third party overtime um the difference would be at the third party overtime is at the request of a vendor. No, I I I know what they are. I'm what I'm repeating is what the arbitrator and and confirmed by the Spirit Court judge is that they are silent on the issue.
>> I'm sorry.
>> Silent. They do not speak to third party overtime.
>> Well, I think there's several points that I could make that would dispute that.
>> Well, I mean, this is wait, >> this is an arbitration, >> right? Right.
>> So, you're not you're here on a very narrow standard of review. You don't get to challenge facts completely.
>> And there's another question I have for you on the fact, but you go ahead.
>> Completely. So third party overtime, it's this the person's doing the same work that's in their job description.
The employer and the employee. The city of Boston's the employer. The employee would be subject to discipline. If the party, if the were injured, it'd be the city. The only difference between these two is one's paid out of the general ledger and one's played by a vendor. So that is fairly irrelevant to the employment uh relationship whether it's third party overtime.
>> Do the CBAs speak to how third party overtime is doled out among the the workers and supervisors?
>> They do. They do in the >> point me to where that is in the record.
>> In the um it talks about in the ASME contract it shall be equitably distributed and the language also goes on to say it should be equally distributed among the parts. And it also notes for the purposes of regular rotation of overtime opportunities, but for such purposes only.
>> So obviously they're talking about other >> Excuse me. Does does it mention third party overtime in the section you just read?
>> It doesn't specifically mention third party overtime?
>> I have I have a different question. You you say that arbitrator um exceeded his authority by considering the CBAs that you asked him to consider.
>> That's correct.
>> I don't understand. So I mean that would be I mean that is black letter law that an arbitrator gets his authority from agreement of the parties. An arbitrator cannot get authority by one one party unilaterally putting in an exhibit >> be in excess of his authority for him to have considered something you asked him to consider >> that because the bargaining unit work was covered by the ask me contract. He should have recognized that oh my limits are to this Cena contract. I have this is the limit I need to establish. I have no authority.
>> Let me ask it work.
>> Let me ask it differently. Why did you ask him to consider something that was inappropriate to consider? It's not it's inappropriate for him to make a determination on and he clearly did that in several points in this case, but he needs to be noticed that this is not covered by the CENA contract. This work, this is this is bargaining unit work of the plumbing and building inspectors covered by a separate contract.
>> And that was literally your defense. One of your defenses and you brought it in.
>> Exactly.
>> Okay. And so, and you're saying once you bring in, the arbitrator should have said >> inappropriate. Please take it out. I don't want to see it. I don't want to hear it.
>> I I think the arbitrator should have taken notice that that went beyond the limits of the scenup bargaining unit. I mean, if this >> what's the line between acknowledging and analyzing and why is this into why is this in the realm of analysis or interpretation? Well, I mean at page 27 um record appendance 150, he says he reviews the collective bar another party's collective bargaining agreements and then he interprets it to limit the language and then assigns the work to the Cena bargaining unit. Like that is just not going that is very problematic for the system of labor arbitration in the Commonwealth for public employees.
This is something that if if you don't respect the limits of the collective bargaining agreement, these type of conflicts um will continue to arise.
>> So, let me ask if we accept your argument on that point, how does CENA possibly enforce their rights under their collectively bargained agreement to get some third party overtime work.
>> I mean, they probably could have filed a transfer of bargaining unit work. If they said through press practice, this was ours, they probably could have filed a charge. Although we did notice and bargain with them, they probably could have filed a charge at the DLR and said we made a change in a past practice without notice and bargaining with them.
But the contracts are very limited to the terms and the work under the contracts. And if those limits are not enforced, >> very step on your answer, but to go back to Justice Me's question, where is the work of third party overtime in the contract? So we do not we've on purpose keep some um provisions very general so we can operationalize different like you saw the notice from the human resource inspector saying I want to make this more equitable and transparent I'm going to give you a half hour. So if we put a half hour to respond every time we want to change something in the contract we purposely keep it general. I mean, you could see in his decision, which I think is interesting, that he says, "None of these contracts have anything on third-party overtime, right?" And then three pages later, he notes a Cena decision where they filed a grievance about the rate for third party overtime as an arbitration under the Cena contract. They're broadly interpreted.
Did the city say, "Oh, no. We have no, we don't have to arbitrate this. There's nothing specific about third party overtime. No, I think we all conceded.
>> If if it if it's not specific, then why couldn't they rely on past practices?
>> They could rely on past practice. They cannot rely on past practice when it's the work is covered by another collective bargaining agreement. He does not have authority to make decisions about that work to decide whether it's exclusive.
>> The it's not specifically covered by it as you as you just told us. So where it is specifically covered which was my starting point is that building and plumbing inspectors are recognized by ASME. So not just those individuals but the work of building and plumbing inspectors is covered by ASME. Um so once they're considering that work he's going to say oh that's under a different contract. I don't have authority to decide whether that's exclusive or not.
That's that's not in my realm of contractual obligation here. He's he's looking at the work of another party. If if that's where his limit was, he could I guess found a past practice but says I don't have authority to order a remedy assigning work from another collective bargaining agreement.
>> What did you what was your purpose in providing the arbiter then with these materials? What did you want the arbiter to do with them?
I so with one of the points on uh past practice is is a good reason for doing so. We can't and I actually said to them like I the city just wants the work done. So do you just ask me mind if the plumbing inspector work is done on third party and they said that's that's our bargaining work. So I'm left with saying well I have to follow the contractual inspection work is IBW building and plumbing is in seen as got the supervisors I have to follow and this happens a lot with the arbittor was to do what with those materials >> take notice of that and say I can't make a determination under a contract I haven't been the parties haven't agreed for me to arbitrate under so much >> take notice is that a legal standard what is that take notice >> I mean is it a it's a legal standard of the limits of his jurisdiction. I mean, I think the Ryan case, like perfectly on point, the Ryan arbitration case that we brought up about the critical question, can an absent a multi-party collective bargment, >> that's not by us or the SJC, that's another arbit arbitrator, >> that's another arbitrator. But on this exact point about uh past practice of overtime provision affecting the collective bargaining work of another unit when he's there's only one party to the contract there. It simply cannot reach out even if supported by past practice to decide the rights regarding the members of another bargaining unit.
And that's what this arbitrator did. And that's why it's very problematic. Um see wow my time has gone fast. Um, I really just wanted to also point out the um, chapter 150E is like a mini National Labor Relations Act, but under the National Labor Relations Act, employees in the city situation facing competing claims from different unions can file an unfair labor practice under section 84BD.
>> Council, unfortunately, your time is expired. We're going to have to leave it there. We will take the rest of your arguments on your brief. Thank you very much.
>> Thank you.
Attorney Burwald.
Uh, >> may I please the court? My name is Attorney Evan Burwald for the American Federation of State County Municipal Employees, Council 93. Uh, and we're here. I'm >> I have a question. Um, >> because I don't uh Cena says that you don't have standing and I don't believe you filed a reply brief. Oh, the our argument for standing was made in the lower court and um I believe it's made in the other >> you have to make it in this court otherwise they're waved.
>> Uh I believe the st I believe the standing arguments were made in >> All right, let's cut to the chase. Why do you have standing party to the arch?
>> We threaten to initiate litigation against the city through the grievance procedure of our contract or through chapter 150 >> in statute says statute says only parties have standing, right? Am I wrong then? Maybe I misread that.
>> Uh, no. I believe the standard is a threat of injury. Okay. Which would be some sort of litigation, i.e. a grievance or a charge before an administrative agency. That threat would create injury, which would create standing. Additionally, we were joined into this matter by um the parties here.
Uh because our contract is directly implicated by the decision in the arbitration um which we had no ability to defend. As you're aware, contracts are the founding documents of the union. uh our work that is enshrined in that contract has been affected without our ability to defend it. As you are well aware, we are saddled with the facts that were discovered at arbitration, but ASKME had no input into those facts. Um the federal system under the National Labor Relations Act does have a mechanism that allows unions to settle work disputes that the employer can send the unions to. There is no similar mechanism under chapter 150E. We have been deprived the ability to defend our work through this arbitration. The cases cited um in I believe it was JCI which interprets Carrie v. Westinghouse.
JCI misstates Carrie. Carrie uses mays and mightes. Arbitration may or might solve interun work disputes not definitively solve.
Our interwork dispute has not been definitively solved through this arbitration. Hence why we threatened to bring arbitration or an unfairly practice charge to the city which I believe was admitted to in our answer paragraph >> and you can still do that >> and you can still do that.
>> We can still do that. Yes. And we intend to do that.
>> Um otherwise uh ask me relies on its briefs and its submissions before this court if there are no further questions for you.
>> Thank you very much.
>> Thank you. Attorney Bertrand, just give us a minute to reset. Thank you.
When you're ready. Thank you. Uh, good morning, your honors. May it please the court.
So, I want to start really quick um by pointing out that this is a manufactured controversy. Um the city clearly disagrees with the arbitrator's findings of facts and the arbitrator's decision.
Um but that alone is not sufficient to overturn the award. I also want to point out um with respect to Cena's contract and ASME's contract and IBW even though they actually weren't brought into this matter um there actually is a contractual difference um between overtime and third-party overtime in the sense that overtime is a is premium pay for work performed in excess of the regular work week. Typically a 35 or 40hour work week. So, I'm going to ask you a question that maybe'll I don't want to throw you off your argument.
Maybe a little off the record slightly, but it's my last thing. I'm curious. How do the supervisors get in on this gig to begin with? I don't get it.
>> So, um the supervisors are inspectional supervisors. Right.
>> Right.
>> And so, these are because of the nature of them and the off hours um it's basically like >> these parties are renting these employees to perform inspections. The inspe the cenino supervisors are fully qualified to they do also perform inspections on their own.
>> So they do have they have the job qualifications did not >> they have the job qualifications. Yes.
Is that is that what uh >> there you go. That's >> yes they have the job qualifications and in fact the two CNA supervisors that testified at the arbitration were formerly inspectors um for ASME and IBW and then they were promoted to supervisors in the Cena bargaining unit.
So, what's an arbittor supposed to do when a party gives them documents that may or may not be properly before the arbiter?
>> Well, the in this case, the CPAs were entered into evidence. Um, the arbitrator >> is the arbiter supposed to say to him or herself, "Oh my goodness, this shouldn't have been entered in. I should ignore this."
>> I mean, the arbitrator has a wide latitude to accept evidence. the standard rules of evidence don't apply.
They often take documents into evidence and then reference in their decision that they actually find they're not relevant or not applicable. That's very common. Um, and in this situation, that's essentially what the arbitrator did. He said, "I looked at them. I didn't see anything." Um, >> do you agree the arbitrator interpreted those?
>> I'm sorry.
>> I'm sorry. Sorry to interrupt you. Do you agree that the arbitrator interpreted as opposed to just you kind of said looked at them and said, So, it seems like that's two different things based on your argument. Yeah, I do not agree that the arbitrator interpreted um any collective bargaining agreement other than Cena's collective bargaining agreement. Um as you have all um pointed out the other agreements are silent on third party overtime. Um which again you know the contracts all three of them define overtime as work performed in excess of the regular work week whether that's 35 or 40 hours. Third party overtime is work performed outside of business hours. It doesn't matter if I'm uh one of these employees, you know, I have to work 35 or 40 hours before I can be paid overtime uh when I'm performing work in excess of my regular work week.
I can work four hours in a week and then pick up a third party overtime shift and I still get premium pay for that. It is not tied to how many hours I've worked.
Um and that is a large reason why uh none of these overtime provisions have anything really to do with this case.
Um, I'm happy to answer any other further questions, but I think you've all expressed a lot of the concerns that we've raised. So, um, unless you have specific questions, >> I wouldn't necessarily interpret expression of concern as agreement, but that's what we want.
>> No, I I understand that, but I I mean, I can tell you all have a very good handle on the papers. So, um, if you have specific questions, I'm happy to answer them, but um, you know, otherwise, I don't want to take up your time.
If if if the the proposed or the change that the city uh um imposed, you just wanted to bargain for it.
>> No. Uh we did not want to bargain over it. So there's just been this existing past practice that's been happening for >> if if they wanted to change it, you wanted to >> Oh, yes. If the city wanted to change it, I'm sorry.
>> They would have provided proper notice to us and we potentially could have bargained over that change of practice.
um or you know when the contract expired we could they could bargain something new about past practice if they wanted to try to eliminate that. So there's a lot of times where they could have um you know provided notice and tried to bargain over changing this. And actually that that reminds me and I would also like to point out um you know ask me complains that it hasn't had an opportunity to challenge um the arbitrator's decision to award this work to Cena. But Cena's been participating in this work for three plus decades and at no point has ASME tried to challenge it via their own grievance or via an unfair labor practice charge. What's your position on their standing?
>> It's our position that they do not have standing. Um the party um as it as it means um to be a necessary party here um requires them to be a party to the collective bargaining agreement in the arbitration that issue here.
>> What if it adversely affects them though?
>> If it adversely affects them um it doesn't matter. they have opportunity. That's unfortunate. That's a problem of the city's own making. Apps me may file a grievance or file an unfair labor practice charge and take other action that the city has to defend itself against, but that doesn't mean that they have standing here.
>> I'm good.
>> I don't see any other questions. We're happy to take the remainder of your argument on your brief.
>> Great. Thank you very much.
>> Under advisement. Thank you.
>> Thank you.
Our last case this morning is Marissa M.
Knight versus the Department of Unemployment and another docket number 25P 930.
>> Thank you. Thank you very much.
>> Bill do the Q&A or get the Q&A.
>> Okay, we'll do the Okay.
>> Good morning.
>> Good morning, your honors. Um, may it please the court um Rory Mcni on behalf of the appellant, Marissa Knight. Uh, Knight applied for unemployment benefits after she resigned from her job as a special education teacher when she could no longer manage the 90-minute commute from her home in Fitchburg to the school where she worked in Watertown because she had glaucoma and driving was making her symptoms worse.
When someone leaves work because of a reasonable health concern after making a reasonable attempt to preserve their job, they have left work involuntarily for urgent, compelling, and necessitous reasons, and they're entitled to unemployment benefits.
This case is straightforward. The review examiner concluded that Knight had reasonable health concerns and his findings established that Knight attempted to preserve her job prior to resigning. Those findings are not in dispute. Did did the employer know about her medical condition?
>> They did. Yes.
>> And but did they know how it affected her ability to to do the job or to get to the job?
>> Yes. Um she did provide them notice when she was resigning that she was resigning due to the health concerns related to her commute and gave them four weeks notice. Um >> but other than asking to sleep in the in the dormatory, she didn't ask for any other accommodation.
Um, not not verbatim. Uh, but an employes, >> how else would you do it?
>> Sorry, what was that?
>> How you said, well, you said verbatim. I think you meant expressly, but um, how else would one ask for an accommodation if it's not expressly?
>> Well, in order to satisfy the the reasonable attempt to preserve the job, you don't actually have to request an accommodation. things like even uh you know going to see a doctor to try to get treated to reduce the impact on your health can be a reasonable attempt to preserve your job. Um and you know she had also um taken time off on the days when she wasn't able to commute to work.
>> That was a snow issue mostly, right? Not a health issue. Apparently it snows in Fitsburg and not in Watertown.
>> Yes. Um so >> frequently frequently apparently >> that's correct. So, so her uh notice to the employer didn't specifically say that it was related to the health.
>> So, Dehoney, I think is the name of the case where the holding there was that the failure to request a leave of absent was sufficient to support the examiner's determination that the plaintiff failed to explore reasonable alternatives. How is that different from here where they again at least as the examiner found she knew about her PFML?
>> I think I'm doing that right. Paid medical leave absence. Yeah, PFMLA and she didn't ask for it. So to the at least it seems to me that that standalone finding by the examiner should be enough. Why is it not?
>> So in the Deon case, the review examiner actually found that it wasn't the health concern. It wasn't the pregnancy that caused the separation. It was the failure to request a leave of absence. Um, Dhoni was pregnant and wanted to come back to work after she gave birth, but she didn't actually tell her employer that, she just stopped working. And so the uh the review examiner in the court concluded that because it wasn't actually the health concern that was what caused the separation, that it wasn't urgent, compelling, and necessitous. because of that.
>> Did you put on any evidence of futility below?
>> Um, so the I didn't represent the claimant at her hearing.
>> Did she?
>> Um, >> I don't think there I didn't see any.
>> No, I I I don't think that she directly addressed that.
>> How do we address that on appeal? You criticized the DUA, but they didn't have any. It wasn't before them. So the um futility, a claimant doesn't have to establish that it is feudal. Um they just have to show that they made a reasonable attempt to preserve their job. It's only if they didn't do anything to try to preserve their job that they have to establish futility.
But at at pages 18 to 21 of your brief, you criticize the board for failing to address whether it would have been feutal. But if that wasn't before them, how do they address it? You're not saying they're suante supposed to address it, are you?
>> No. Uh the the review examiner um didn't actually um ask anything or about, you know, to the employer, you know, could you have offered her a a indefinite leave of absence or alternative schedule? Those weren't the um >> So is your you're taking the position it's on the employer's uh it's the sorry it's the employer's burden to show a lack of futility. If I'm saying too many double negatives, let me know.
But >> no, it it's not on the employer to establish.
>> So then it must be on your client.
>> It is on the client if that is what you are trying to establish.
>> Okay. So then that's just not an issue for us. Is that your position? because it doesn't seem like that's what you argued in your brief.
>> Well, so so our argument is that the one thing that the review examiner pointed out, the one thing that it is that she did not request a leave of absence, >> right?
>> Um, >> and why is it why was it then not her obligation to say, well, even if I took a leave of absence, it would have been futile for these 1 to 10 reasons. And absent that, why should the examiner even address it or why should we address it for that matter?
So, the review examiner has an obligation to provide reasonable assistance to unrepresented claimants in presenting questions and answering um and and resolving ambiguities. Um, and the review examiner didn't actually um ask anything to address whether there was uh something that would have been done because I mean in this case the the review examiner found that um Knight's doctor had advised her to cut back on her driving and like given a three-hour commute that's effectively the same thing as a doctor explicitly telling her to resign. But >> a leave of absence.
>> Are you saying it's 3 hours from Fittburg to Watertown?
>> No. No. 90 minutes twice a day.
>> Okay. Just >> um So, but because that's the one thing that the review examiner is pointing out and saying she did not do that specific thing, we're saying a leave of absence in this case would not have done anything. her commute would have been the same. The condition wasn't temporary and she's not required to request a leave of absence. She's only required to make a reasonable attempt to preserve her job. Um, but rather than considering what she did do, the review examiner was really narrow and focused on the one thing that she didn't. Um, but she wasn't required to have exhausted every possible attempt um, every possible means, I apologize, of um, preserving her job. She just had to show that she made a reasonable attempt. And the review examiner's own findings established that not only did she make a reasonable attempt, she made several.
Um, if the review examiner's own findings hadn't established that Knight attempted to preserve her job, his decision would still fall short of demonstrating that correct legal principles were applied and arriving at the conclusion that Knight left work voluntarily and remand would be required. Um, however, because the review examiner's decision not only fails to site sufficient findings to support his conclusion, but also sets forth findings that compel the opposite conclusion, no good purpose would be served by remanding the case for further findings. Uh, reversal, not remand, would be appropriate. The review examiner concluded that Knight had reasonable health concerns and his findings established that she attempted to preserve her job prior to resigning.
Um, that's all that the law requires to establish that she left work involuntarily for urgent, compelling, and necessitous reasons. Uh, no good purpose would be served by remanding the case, um, the agency decision should be reversed.
Um, and unless the court has any further questions, I'm happy to rest on our briefs.
>> I don't see any. Thank you. We'll take the rest of the argument on your brief.
>> Thank you, >> Attorney Mris.
Good morning and may I please the court.
Aaron Mccris, Assistant Attorney General on behalf of the Department of Unemployment Assistance.
This appeal is a substantial evidence challenge which which means that a very differential standard of review applies.
That is the appellant must establish that no reasonable mind could have concluded as the agency did based on the factual record before it. And viewed through that that lens, the arguments on appealer present a very narrow issue. That is, could a reasonable mind have concluded that the appellant did not leave for compelling, urgent, and necessitous reasons based on the conclusion that the review examiner reached here on page 73 of the record.
that appellant did not request any accommodation before resigning. And it bears emphasizing that the review examiner did not uh make that decision make its decision uh based solely on the fact that appellant failed to request leave but failed to request any type of accommodation more broadly.
>> Where does it say that in the conclusions? I thought you acknowledge that the conclusions are a little thin.
They're a little thin. Your honor, granted the decision is not particularly long. Of course, under this >> they need to be in some situations, but in this one, where does it say? What did you just say that?
>> I I was uh referring to page 73 of the record appendix, your honor. Uh and I'll I'll read the exact language.
>> Thank you.
>> It says the claimant did not attempt to preserve her job by requesting an accommodation such as a leave of absence. Meaning that failed to request a leave of absence is one example of an accommodation she might have requested.
But more broadly, she failed to request any accommodation. And I think there are a few points about that that bear emphasizing.
>> What What if the leave of absence wouldn't have done her any good?
>> If there had been evidence of futility below and the review examiner found that compelling, then the review examiner might have found in appellants's favor.
But that's not the way the factual record panned out here. Uh first to be clear, uh again other accommodations might have fixed the issue here. And I think that's why the review examiner ruled the way that it did. Just hypothetically, for example, uh because appellants issues related to the amount of driving. It's not that she couldn't drive at all. It's not that she had no transportation, but that she was given the instructions by her doctor to cut back on her driving. Perhaps a reduced work work schedule might have accommodated that issue uh either in terms of reduced days or uh giving her a schedule that allowed her to take the train uh and circumvent whatever obstacle she was facing in terms of train reliability. and we just don't know what those possibilities were because she didn't present evidence in the record on that front and it was her evidence or her burden to present that evidence and establish that she had pursued all reasonable means to preserve her job. I think additionally if a palent if she had approached Walker and said look I have glaucoma because of my symptoms I have to cut back on my driving that's what my doctor has told me what can you do for me here I think this would probably be a different case the problem is that she resigned before exploring any of those options and to be clear I don't think Walker well the record establishes that Walker did not know about her health concerns at least not in the specific way that she had raised them before uh the board below or in her briefing here, the Walker's HR representative testified, this is at page uh 177 to 178 of the record, that they they were not aware of these health concerns, at least in the way that she had presented them.
>> Well, there's something in the record where she received a written disciplinary warning because she took time off that she notified them 3 weeks in advance was seeing a medical professional out of state for this condition. Isn't that some evidence that they were aware of it? Well, to clarify, your honor, the medical reason for the absence was not present based on the HR representatives testimony was not presented until after she had failed to show up for work. Uh, and in that instance, she had told her supervisor, I'd like to take this extra day off. She said, well, we we need you here on that day. She didn't show up. And then after the fact, they gave her a written warning. And she said, well, I just to be clear, I I took this absence because I have a medical issue. But there was no connection between the medical problem, glaucoma, and these other obstacles that she was experiencing. She never said, "I'm having trouble making it to work because of my glaucoma symptoms. What can you do for me here?" Uh, and I I'll also just add um going back to Justice Brennan's question about um the detail in the record and the finding that she failed to to request any accommodation.
The evidence presented to the review examiner was a little bit more diffuse in the sense that she presented sort of a medley of health concerns. The review examiner wasn't uh focused only on this glaucoma issue, which is what she's focused on on appeal. The she had presented evidence uh related to uh a hospitalization that occurred immediately before she resigned or she was diagnosed with work-related stress.
And I think the best reading is that >> the service dog that may have licked her.
>> That may have been a contributing factor. The record's not crystal clear on this. The record establishes that she had some type of fear of dogs, that there was a service dog in her classroom and that that was raising her blood pressure or causing her other stress. We also know that she went to the hospital shortly before she resigned and that the diagnosis was you have work-related stress. Uh those seem to be related in some way. But our analysis our analysis seems to me is fairly focused on the hearing examiner's conclusions and reasoning and and that it seems to me and that wasn't actually part of her appeal, right? Do we need to address that?
>> No, your honor. And and I don't mean to suggest that the appeal the court needs to get into that other health issue. I point that out just to explain why the review examiner mentioned leave of absence as an option because the review examiner was addressing this medley of health concerns and one could imagine that if one of those health concerns was work-related stress while a leave of absence seems like a natural tool to address that. Uh and then your honors just turning briefly to futility. Uh to be clear there was no evidence presented in the record about futility. That was not an argument that appellent raised.
And beyond that, the only evidence that came up that is related to fut futility suggested the that there was no futility. Uh the review examiner expressly asked appellant uh why did you not request medical leave? And her answer was not it would have been feudal or it would have done no good. My problems aren't the kind that could be addressed by leave. She said she didn't use PFML because she wasn't aware of that benefit. And that was at page pages 185 to 188 of the record. and the review examiner just didn't accept that she hadn't been made aware because there was evidence that expressly established she had been put on notice about PFML benefits.
Uh just briefly your honors on one final point um we are just to be clear we are not arguing that a request for leave is required in every single case. It depends on the context. Uh but here it was reasonable for the review examiner to conclude conclude based on the record as a whole that starting that conversation about what accommodations Walker might have been able to offer her in light of her health concerns that was a reasonable step that she should have taken. The review examiner acknowledged all of the steps she did take, but because there were further reasonable steps that she could have taken, but chose not to, she did not take reasonable steps to preserve her job, and that conclusion is entitled to deference. Unless there are other any other questions from the court, I will rest on the briefing.
>> I don't see any other questions. We will take that rest of your argument on your brief. The case has been submitted and is under advisement. Council, thank you very much. That does conclude this morning's sitting of the appeals
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