Your responsibility under the circumstances is pretty clear here, at least unless you’re prepared to pay for a wardful of kiddie-sized artificial limbs: you’re going to have to clear out, rope off, or otherwise mitigate an obvious hazard to the public on your property.

Easy enough. Now try this one: what if it were a January morning, and you awoke to find that your sidewalk had naturally frozen into a solid sheet of slippery snow and ice? Until recently, you could have thrown some popcorn in the microwave, eased into your favorite bunny slippers, and enjoyed the hilarious slip-and-fall antics with your morning coffee.

The ice was, you see, merely a “natural accumulation.” It came from the sky! It wasn’t your fault!

That’s right: Massachusetts law for the past 150 years has held property owners responsible only for injuries resulting from “unnatural accumulations” of snow and ice. While the “natural” vs. “unnatural” distinction is about as unnatural as it gets, the best I’ve been able to discern is that accumulations caused by any kind of “synthetic” means (i.e., your mother going a little crazy with the snowblower) incur liability, while those which have fallen into place “naturally” (i.e., Mother Nature) do not.

This rule, eliminated at long last today in Papadopolous v. Target, was so stupid that it has been known nationwide as “The Massachusetts Rule” for at least the past century. (This kind of special treatment is not generally proportionate to a given rule’s logic or correctness.) It is an ancient holdover from a time when a completely different legal standard was applied to the duty owed by landowners to people who might be passing over their property in the normal course of business (”invitees”) as opposed to paying tenants.¹

I don’t have much of a stomach for torts,² but anyone who was mostly conscious through their first year of law school will recall the “duty of reasonable care” which homeowners owe to those—even, in some cases, known trespassers—who may be crossing over their property. The principle is pretty straightforward: Every man’s home is his castle, and if you want to cover your floors in rancid butter, rusty caltrops, and used medical supplies, you have every right to do so—so long as you don’t expose anyone else to these conditions. If you know (or have reason to know) of a hazard which might be encountered by others, you have a legal³ responsibility to employ all reasonable means available to clean it up. Hence the banana peels-and-bear-traps hypothetical above, and the simple logic of today’s decision. While a general duty of reasonable care to anyone who might cross their property has been the law for property owners in the Commonwealth since at least the 1977, the courts never bothered to shovel up the old “natural” vs. “unnatural” distinction for snow and ice—and plaintiffs have been tripping up on it ever since.

This weird little exception to the reasonable care rule is somewhat understandable on a practical level: clearing out snow in the middle of a New England winter is a lot of work. But even Rhode Island⁴ snidely parted ways with Massachusetts on this years ago, laconically noting that:

We believe that today a landlord, armed with an ample supply of salt, sand, scrapers, shovels and even perhaps a snow blower, can acquit himself quite admirably as he takes to the common passageways to do battle with the fallen snow, the sun-melted snow now turned to ice, or the frozen rain.

–-Fuller v. Housing Auth. of Providence, 108 R.I. 770, 773 (1971)(emphasis added)

The SJC has basically adopted this reasoning, albeit in slightly less-quotable form, and scattered enough quick-melt salt on the old “natural accumulation” rule to do away with it forever. It even liked this development so much that it opted to make the rule fully retroactive—complete with the usual inevitable assurances that, really, there’s no reason to think that any litigation-minded plaintiff would actually be impolite enough to reach for the blank checkbook this might present for anyone who has taken a spill on some ice in the past 150 years.⁵

As of Papadopolous, the SJC has now finally—mercifully—brought Massachusetts to the very cutting edge of postmodern snow law. Bonus: this decision lands in the middle of one of the Commonwealth’s hottest summers on record.

Happy shoveling!

1. The SJC has provided a perfectly serviceable review of the 150 years of relevant law within its opinion which I don’t feel any need to retread here.
2. at least those not served a la mode
3. if not moral and social
4. Rhode Island! A place so married to tradition that it is the last American state to continue to openly celebrate Victory over Japan Day!
5. I kid. This was, of course, a major change to a common law rule, a circumstance which generally demands retroactivity. I just love how every time any court announces a groundbreaking retroactive rule it always seems to feel obligated to add that this won’t really, y’know, change anything, and there’s certainly no reason to believe that it will inspire a fresh wave of legal action.

Since it’s not often that a motion for a new trial makes headlines, I thought that this would be a good time to address questions which I am often asked in connection with vacating convictions in Massachusetts. I should note up front that while practitioners typically refer to this process as a “motion for new trial,” these motions are also legally identical to motions to withdraw a guilty plea, and are often collectively referred to as “motions to vacate.” I will be using this last term throughout this post not only because it is somewhat simpler, but also because I like the sound of it.

What is a motion to vacate?

Rule 30(b) of the Massachusetts Rules of Criminal Procedure states that judges may vacate prior convictions “at any time” upon a showing that “justice may not have been done” in the prior proceedings. This includes convictions arising either from trials or guilty pleas.

If turning back the clock to rectify a situation in which “justice may not have been done” sounds like a job for Superman—or, if Mr. Kent is otherwise engaged, perhaps Matt Murdock—you can think of Rule 30(b) as a Massachusetts judge’s own personal phone booth. It bestows the courts with extraordinary powers, which is exactly why they generally choose to exercise them only in extraordinary circumstances.

How is a motion to vacate different from an appeal?

Motions to vacate differ from direct appeals in two significant ways:

1) Timing.  Notice of direct appeal from a criminal conviction must be brought within 30 days of the date of conviction, although late appeals may be permitted under certain circumstances. Under Rule 30(b), however, a motion to vacate a conviction may be brought “at any time.” It is not uncommon to see these motions brought decades or more after the original conviction, usually when the defendant is facing serious collateral consequences such as deportation or enhanced sentencing in a subsequent charge.

2) Content. New evidence may not be raised on direct appeal, as all claims made on appeal must be supported by the settled record in the trial court. A motion for new trial presents an opportunity to expand the record with information which did not appear in prior proceedings. This could be exculpatory (newly-available eyewitness testimony, new scientific evidence, etc.) or, more commonly, evidence as to elements of the trial (usually, but not always, attorney performance) which are not immediately apparent from the face of the record.

What does it take to vacate a conviction?

Grounds for a successful motion to vacate can vary widely, and you should consult an attorney who is experienced with these unique and highly technical motions if you believe that “justice may not have been done” in any criminal proceeding. Possible reasons for vacating convictions will depend entirely on the circumstances of your case, but they may include deficiencies in the plea hearing, problems at trial (including ineffective assistance of trial counsel), and/or newly-available exculpatory evidence.

Dude, I was totally high when I pled to that. Shouldn’t I get another chance?

Maybe, but probably not.

Judges are required to ask defendants a series of questions (known as the “plea colloquy”) under oath prior to accepting a plea to be sure that they haven’t used any drugs or alcohol that day and aren’t on any medication that would otherwise affect their judgment before a guilty plea may enter, and defendants are generally going to be stuck with the responses they provided at the time. Of course, the question itself isn’t especially useful: if you really were under the influence to a degree that would concern the court, you may not have been especially well-equipped to know whether or not your judgment was  impaired.  (Or, for that matter, that you were not actually engaged in a friendly conversation with, say, an affable black-robed porcupine about late-’70s modal jazz.)

You can see the problem here: if voluntary intoxication were proper grounds for withdrawing a guilty plea, our courts would be full of criminal defendants hopped up on their substances of choice hoping to be able to come back and get a better deal after the case was closed and the evidence disposed of.

That said, judges are obligated to determine that defendants are fully competent to enter a plea and know exactly what they are doing before accepting the plea and permitting it to become a conviction. Although I’m not aware of any reported Massachusetts case which has allowed a conviction to be vacated on these grounds, it is certainly possible that a judge who failed to notice a defendant’s state of obvious intoxication at the time of the plea would not be faulted for later permitting this plea to be withdrawn.

I am a foreign national who is about to be deported and permanently separated from my family in the U.S. because of an old, relatively minor, conviction. Can’t the judge consider this fact?

No. Although you can certainly mention it, Massachusetts courts are not simply permitted to explicitly take so-called “collateral consequences” into account when ruling on motions to vacate. And you wouldn’t want them to, anyway: No matter how the relevant state law defines it, immigration authorities will only consider a conviction to be officially vacated for their purposes if the record demonstrates that this decision was made on legal or Constitutional grounds. This is an unfortunate reality of our system, and only one more example of how it occasionally permits our laws to preclude the administration of justice.

However, this is not to say that it is not possible to clear a conviction when it is the only thing standing between you and your otherwise-lawful presence in the United States. In fact, there is sometimes an extra option available to those facing deportation for reopening an old plea that would not be available for U.S. citizens. You should consult an attorney immediately if you are currently facing immigration consequences from a criminal conviction.

How often are these motions granted?

Motions to vacate are, as they say, “disfavored.” There is generally a presumption in favor of the validity of any given conviction, and the burden is on the defendant to overcome this presumption. If this seems like a high standard, it is this way by design in favor of the basic principle that a functioning justice system requires some measure of finality in its criminal convictions.

This principle is especially true in regard to plea hearings in which criminal defendants have freely, knowingly, and voluntarily waived their Constitutional rights to have the evidence against them proven beyond a reasonable doubt and admitted their guilt. Given that any motion to withdraw such a plea must be decided by the same judge who originally accepted it, many judges will be skeptical of any claim that there was something wrong with the plea hearing.

This is not to say that it is impossible to win such motions, however, and I am proud to have been able to obtain favorable results on behalf of many of my clients.

Is vacating a conviction different from sealing/expunging a conviction?

Yes. Although Massachusetts has no provision for “expunging” a conviction in the way that other states permit,  an individual whose records have been  “sealed” by the court may truthfully inform anyone who needs to know that they do not have any criminal convictions. However, these records still technically exist, and may still be accessed by probation, immigration and other law enforcement authorities (although not potential employers, schools, etc.) for certain purposes. Also, records may not be sealed any sooner than 10 years after a misdemeanor conviction, or 15 years after a felony. (The Commonwealth has pretty much the harshest laws in the country in this area; as usual, I blame our theocratically-inclined forefathers.) If this time has already passed, however, sealing old convictions is still almost certainly going to be easier than vacating them.

Although vacating a conviction may ultimately remove it from one’s record entirely, a defendant may also be facing an entirely new set of problems once a motion to vacate is granted—more on which further below.

What happens after a motion to vacate is granted?

One of the most important questions that a defendant should ask himself and/or his attorney before filing a motion to vacate should not be “What if I lose this?”, but rather “What if I win?”

It is a common misconception that a “vacated” conviction is simply cleared from a defendant’s record with no further proceedings. While this may be true in some cases, it is often not quite so simple.

Once you have successfully litigated a motion to vacate, the case is treated as if your plea or trial had never occurred. So the good news is pretty good:  you get a chance for a new plea or trial. Of course, the bad news may also be that you… have a chance for a new plea or trial. Since prosecutors are understandably reluctant (or, in many cases, unable) to go forward with ancient cases in which documents, witnesses, and other evidence have become unavailable, your record may end up entirely cleared. If the conviction was fairly recent, however, the Commonwealth may be happy to offer you a new, substantially-similar plea bargain, or to proceed to re-try you.

Would you mind looking at my conviction to see if there’s anything that might be done to seal or vacate it?

Not at all! I am fully experienced and comfortable with these issues, and you are welcome to contact me any time to schedule a free consultation. If I feel that there is a reasonable possibility that your conviction may be sealed or vacated, it will be my pleasure to represent you in this matter.

But, like the man said, the past isn’t dead… it isn’t even past. For as much as there is to love about having a constitution and an attorney’s oath that are at least twice as old as most American states, it also means that we sometimes have to live with statutes that are just as old–or older.

Our legislature’s woeful failure to update some of our creakiest and most ancient statutes seems to be driven by the same philosophy that has kept the cult of King James going in certain Christian circles: If it was good enough in 1620, it’s good enough for 2008.

Take G.L.c. 272 Sec. 53 (…please!). Although it’s usually referenced as the “disorderly conduct” statute, it is actually a tasty smorgasbord of old-timey criminality. Namely:

Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses, and persons guilty of indecent exposure…

There’s a lot to say about this damnably stupid law, starting with this: It needs to die. Just ask our own Supreme Judicial Court:

We note at the outset that G.L.c. 272 Sec. 53 has been saved, although sometimes just barely, by several limiting constructions and we have repeatedly commented that the statute is archaic and in need of legislative scrutiny.

Commonwealth v. Chou, 433 Mass. 229 (2001), FN2.

Which is to say: Boys,  load up yer shotguns, drag this thing out back, and kindly shoot it in the HEAD.

Fair game, as were prior remarks that this section has “had a tortured history” (too lazy for a full cite, but it was 1975), and is “obviously is badly in need of careful legislative attention and comprehensive revision and rearranging” (same, 1981).

All true. Sec. 53 has been in legal force in one form or another since the earliest days of the Massachusetts Bay Colony, back when freedom of speech meant “freedom of Biblically-sanctioned Puritan speech” and your mom was just getting started in her storied career as a common night walker. Its manifest “constitutional infirmities” (1988) have been remedied only by acts of judicial triage, most significantly a constructive grafting of the Model Penal Code’s definition of “disorderly” (1975) as well as generously limiting its scope to “conduct which involves no lawful exercise of a First Amendment right” (1976).

And it used to be much worse. The last serious attempt to revise and rearrange Sec. 53 “to simplify, to clarify, to modernize, and to make more precise an ancient statute some of the terms of which were difficult to define and had come to have a flavor of obsolescence” was undertaken in 1941. See Commonwealth v. Lombard, 321 Mass. 294 (1947); See also Commonwealth v. Diamond, 248 Mass. 511 (1924)(tracing disorderly conduct statute’s history from 17th century colonial law to the 1920s).

The 1941 reform decriminalized the conduct of a whole merry band of ne’er-do-wells previously named in Sec. 53’s predecessor. To wit: “rogues and vagabonds,” “common pipers and fiddlers,”persons who use any juggling or unlawful games or plays,” “pilferers,” “persons who neglect all lawful business and habitually misspend their time by frequenting houses of ill fame, gaming houses or tippling shops ,” (these last being, I gather, some kind of Victorian packies) and (my favorite) “persons who neglect their calling or employment or who misspend what they earn and do not provide for themselves.” Lombard, again, but see also Alegata v. Commonwealth, 353 Mass. 287 (1967). (When taken as a whole, it appears that this revision also effectively legitimized the existence of most of Allston-Brighton.)

So that’s all pretty hilariously self-explanatory. What is not is why what is left of Sec. 53 hasn’t gone the way of old chestnuts like the  one that used to criminalize “tramps” (still going strong while Lowell native Jack Kerouac was on the road), or the one about any “person known to be a pickpocket, thief or burglar… acting in a suspicious manner around any steamboat landing [etc],” both of which were  gutshot by Alegata more than forty years ago while Sec. 53 was left on life support.

Yes, our creepy Puritan great-uncle still wanders the old post roads, a cheerless zombie who munches nuts and berries while sprinkling himself with ashes as he mumbles about the Commonwealth of idle and disorderly railers and brawlers and common night walkers we’ve become.

As amusing as this bit of colonial arcana is, it is also a real law with real consequences, under which real people are convicted every day.  I presently have four separate appeals pending in which my clients were charged and convicted under this statute. Three of these four were sentenced to the maximum six months of committed time on the basis of nothing more than things that they said to other people and I still just don’t see why.

Next: prepare to be accosted and/or annoyed!