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Posts Tagged ‘Justice Barbara Lenk’

Mass. High Court Gives OK to Non-Governmental Needle Exchange Programs

Posted on: June 14th, 2017 by Art Leonard No Comments

Giving a very close reading to Massachusetts statutes regulating the sale of hypodermic needles and authorizing the Public Health Department to set up needle exchange programs, the Massachusetts Supreme Judicial Court unanimously ruled on June 14 that there was no legal impediment to a private, non-profit group setting up a free needle-exchange program without the specific approval of local government authorities. The ruling came in response to an attempt by the Town of Barnstable to shut down a free needle exchange program in Hyannis, on Cape Cod, started by the AIDS Support Group of Cape Cod, referred to throughout Justice Barbara Lenk’s opinion for the Court as ASGCC.  AIDS Support Group of Cape Cod, Inc. v. Town of Barnstable, SJC-12224, 2017 Mass. LEXIS 391 (June 14, 2017).

ASGCC started its “free hypodermic needle access program” in 2009, which it has been operating in Hyannis, Provincetown, and Falmouth. The program is intended to help reduce the spread of HIV and hepatitis C by making sure that injectable drug users have clean needles and no need to share used needles.  ASGCC made no attempt to get approval for their program by the local town government, probably anticipating that it would be controversial and likely denied.

According to Justice Lenk’s opinion, “ASGCC seeks to ensure that its clients use a clean needle every time they inject opiates or other drugs. ASGCC therefore conducts an initial assessment of each person who requests needles or other services and provides only as many needles as staff believe will be necessary so that the client will be able to use a clean needle for each injection.  ASGCC provides a collection receptacle for the return of used needles at its facility, encourages clients to return needles, and gives each client an individual ‘sharps container’ for storing used needles before they are returned, but does not require a return of the same number of needles distributed in order to provide additional needles.”

ASGCC also provide other free services such as medical case management, peer support groups, housing, nutritional programs, testing for HIV and other blood-borne conditions, and risk reduction strategies.

The current lawsuit got under way when town authorities claim to have discovered “improperly discarded hypodermic needles in public places” and determined that some of them came from ASGCC’s distribution activities. The town police hand-delivered a “warning” letter to ASGCC’s facility on September 22, 2015, and the town’s director of public health mailed a “cease and desist” order on September 23, 2015, threatening action against ASGCC if it continued to distribute needles.

ASGCC obtained assistance from GLBTQ Legal Advocates & Defenders (GLAD), a Boston-based public interest law firm, which filed suit on their behalf in the Massachusetts Superior Court. GLAD attorney Bennett Klein argued that the town’s order was not authorized by law and sought an injunction against enforcement of the town’s cease and desist order.  Superior Court Judge Raymond P. Veary, Jr., issued a preliminary injunction and the case was certified for a quick appeal, eventually bypassing the Appeals Court and going directly to the Supreme Judicial Court due to the urgency of resolving the issue.

Massachusetts, like many other states, outlawed the sale, distribution and private possession of hypodermic needles except for those sold by licensed pharmacists to fill a prescription by a licensed physician. However, in 2006, in response to intense lobbying by HIV prevention groups and public health officials, the legislature amended the statute to regulate only sales, removing criminal penalties for possession, and authorizing the Department of Public Health to operate non-sale needle exchange programs with local approval.

In defending against ASGCC’s lawsuit, the town argued that under the statute needles can only be legally obtained in Massachusetts either from a licensed pharmacist filling a prescription or from the needle exchange program operated by the Department of Public Health with local government approval.

The Court agreed with GLAD’s argument that this is not what the statutes provide. For one thing, the criminal penalties for sale by anyone other than a licensed pharmacist do not logically apply to ASGCC’s programs, because they are not selling the needles.  They distribute them for free to those who qualify to participate in the program.  Furthermore, the only free needle distribution programs that require local government approval under the statute are those operated by the state Department of Public Health.

“The statutory language is clear that programs such as ASGCC’s are not prohibited,” wrote Justice Lenk, “the legislative history does not evidence an intent to the contrary, and interpreting the two statutes to allow private entities to operate non-sale needle exchange programs does not give rise to an absurd result,” contrary to the town’s arguments.

On the contrary, what the Court would consider to be “absurd” was the town’s argument that the statutes restricting sale of hypodermic needles apply to ASGCC’s free-distribution program, or that by authorizing the Department of Public Health to set up needle exchange programs, the legislature was somehow, without saying so, making those programs the only venue for free distribution of needles. Indeed, one could argue that by decriminalizing private possession of needles and restricting sales to licensed pharmacists, the legislature was leaving unregulated the free distribution of needles.  But the Court did not have to go that far, merely to find that there was no applicable statutory restriction that would support the town’s cease and desist order.

The town argued that the legislature had “anointed” the pharmacists as the “gatekeepers” of “sale and distribution” of hypodermic needles. But the statute does not forbid non-sale distribution by those who are not pharmacists. The town pointed to failed legislative proposals that would have specifically allowed non-profit groups like ASGCC to distribute needles, and argued that the legislature’s intent to ban such programs could be inferred from the failure to pass such bills.  The Court refused to go down the road of reading an affirmative legislative prohibition into the failure of the body to pass a bill.

The possibility that an adverse ruling in this case could spell the end of free needle distribution programs in Massachusetts drew wide attention to the case. The Court receiving a joint amicus brief from a wide array of HIV, LGBT, and professional public health organizations arguing against the town’s position.  Despite evidence that needle exchange programs administered by non-governmental community based groups have been effective at reducing the rate of HIV transmission through shared hypodermic paraphernalia, such programs are still controversial in many parts of the country.  Although the Court’s opinion did not explicitly review policy arguments supporting such programs, the opinion may add support to efforts elsewhere to establish such programs where they don’t presently exist.

 

Mass. SJC Rules Affirmatively on Same-Sex Partner Parentage Claim in Partanen v. Gallagher

Posted on: October 5th, 2016 by Art Leonard No Comments

The Massachusetts Supreme Judicial Court (SJC) ruled on October 4 that the former same-sex partner of a woman who gave birth to two children through donor insemination during the women’s relationship can seek to establish full legal parentage of the children under the state’s statute concerning parentage of children born out of wedlock. Partanen v. Gallagher, SJC-12018, 2016 Mass. LEXIS 759, 2016 WL 5721061.

Although the state’s courts have in the past recognized various rights for co-parents in similar cases using a “de facto parent” concept, this unanimous ruling is the SJC’s first to take advantage of a law providing that “words of one gender may be construed to include the other gender and the neuter” to adapt a statute that was originally intended to allow unmarried men to establish their paternity of children born “out of wedlock” to their women companions, and to repurpose the statute as a vehicle to establish parental rights for unmarried same-sex partners.

Justice Barbara Lenk wrote for the unanimous seven-member court.

Karen Partanen and Julie Gallagher began their “committed relationship” as a couple in Massachusetts in 2001. The next year they moved to Florida, where they bought a house together in 2003.  In 2005 they decided to use donor insemination to have children.  The plan was for each of the women in turn to be inseminated.  Partanen’s attempt in 2005 was unsuccessful, but Gallagher’s subsequent attempt was successful and she gave birth to their daughter in 2007.  Gallagher was inseminated again in 2011, giving birth to a son.

These procedures were performed with the full cooperation and involvement of Partanen, who was present at the birth of the children. Partanen did not adopt the children, although in 2010 a Florida appeals court struck down the state’s statutory ban on gay people adopting children, but, according to her complaint in this lawsuit, she was fully involved as a parent, including personal contact, financial support, and decision-making.

After their son was born, the family moved back to Massachusetts. Although by then same-sex marriage was legal in Massachusetts, they did not marry. Shortly after the move, they ended their relationship and Partanen moved out.  She filed an action to establish “de facto” parentage in February 2014, requesting visitation and shared custody.  In September 2015, a Family Court judge ruled that she was a “de facto” parent, ordered visitation, and required her to pay child support to Gallagher.  An appeal of that ruling is pending.  Meanwhile, however, in October 2014 Partanen filed a separate action “to establish [full legal] parentage,” which Gallagher moved to dismiss, arguing that “full parentage” could only be achieved under the paternity statute by a biological parent.  Probate and Family Court Judge Jeffrey A. Abber granted Gallagher’s motion to dismiss the parentage case.

If one reads the relevant statute without taking into account the state’s general statutory directive on gender neutrality in interpretation, one could easily see the basis for Judge Abber’s ruling. The provision falls within the chapter of the state’s laws titled “Children Born Out of Wedlock,” Chapter 209C.  The statute extends to “children who are born to parents who are not married to each other.”  The various sections refer to “paternity” and authorize the courts to determine whether somebody is a child’s legal father. The statute recognizes a “presumption of paternity” in various situations.  The one most relevant here is that “a man is presumed to be the father of a child” that is born out of wedlock if “he, jointly with the mother, received the child into their home and openly held out the child as their child.”

Gallagher argued, and the trial judge agreed, that this statutory scheme was not intended to provide a vehicle for somebody to establish legal parental rights over a child to whom the party was not biologically related. The SJC disagreed, pointing out that the statute does not state anywhere that the person seeking to establish parental rights has to be biologically related to the child.  “While the provisions at issue speak in gendered terms,” wrote Justice Lenk, “they may be read in a gender-neutral manner, to apply where a child is ‘born to [two people],’” not just a man and a woman, and the child “is received into their joint home, and is held out by both as their own child.”  Consequently, she wrote, “The plain language of the provision, then, may be construed to apply to children born to same-sex couples, even though at least one member of the couple may well lack biological ties to the children.”

Furthermore, such an interpretation was in accord with the overall purpose of the statute, which, as “laid out in its first sentence, is to provide all ‘children born to parents who are not married to each other’ . . . the same rights and protection of the law as all other children.”

The court strengthened its interpretation with a telling analogy to the use of reproductive technology by different-sex couples. Clearly, a cohabiting but unmarried man and woman who resort to donor insemination to conceive a child because the man is infertile could make use of this statute to establish the man’s paternity without any express requirement in the statute that he prove a biological relationship to the child.  That is, in fact, one of the normal uses of the statute.  If the legislature intended to make sure that all children born to unmarried parents have the same rights, shouldn’t children born to unmarried same-sex couples have the same rights as well?

“Here, had [the children] been born to a married couple using artificial reproductive technology, they would have had two parents to provide them with financial and emotional support,” wrote Justice Lenk. “We decline to read into the statute a provision that leaves children born to unmarried couples, using the same technology, with only one parent.”

Furthermore, she pointed out that the court had in the past recognized an interpretation of another provision that also would “recognize parentage in the absence of a biological relationship,” a provision under which parentage may be established through a “written voluntary acknowledgment of parentage executed jointly by the putative father and the mother of the child.” The court held years ago that such an acknowledgment does not require that the putative father have any genetic relationship to the child.  Under this ruling, same-sex couples can avail themselves of the same provision.  This only works, of course, if both parents are willing to sign such a document.

Gallagher argued that because Partanen lacks a biological connection to the children, they were not “born to” her, and thus do not fall within the scope of the statute. She bolstered this argument by referring to a provision authorizing the family court to order genetic testing of the putative father on a “proper showing” by the moving party.  That provision was clearly intended to allow single mothers seeking child support from the biological fathers of their children to prove genetic paternity in order to subject the men to their parental support duty.  “Where, as here, the parentage claim is not based on a genetic relationship,” wrote Justice Lentz, “Gallagher, as a moving party, cannot show such testing would be relevant to the claim at issue, and therefore, no ‘proper showing’ is possible.”

Ultimately, the court concluded that the facts alleged by Partanen in her complaint should have been sufficient to withstand Gallagher’s motion to dismiss the claim, and if upon remand the trial court finds the factual allegations to be true, Partanen will enjoy the presumption of parentage authorized by the statute and can seek visitation and custody on the same basis as any other person who is presumed to be a parent. If the Family Court judge finds it to be in the best interest of the children, Partanen would be awarded the same custody and visitation rights that any legal parent could seek after parents have ended their relationship with each other.

Although Massachusetts courts had previously recognized the ability of same-sex partners to seek “de facto” parental status, which accorded some rights, the court emphasized that full legal parentage involves the same rights that a biological or legal adoptive parent would enjoy.

The court did not rule on alternative constitutional claims raised by Partanen, resting its decision entirely on construction of the Massachusetts statutes. The court’s opinion does not mention any attempt by Gallagher to argue that treating Partanen as a presumptive parent would violate Gallagher’s constitutional due process rights as a “natural parent,” so it is unlikely that she would be able to seek U.S. Supreme Court review of this decision.

Mary Bonauto, the Civil Rights Project Director at GLAD: Legal Advocates & Defenders, the Boston-based New England GLBT rights public interest law firm, represents Partanen with co-counsel Elizabeth A. Roberts, Teresa Harkins La Vita, Patience Crozier and Joyce Kauffman. Bonauto gave the oral argument in the U.S. Supreme Court in 2015 that led to nationwide marriage equality in Obergefell v. Hodges, and she also argued to the Massachusetts SJC in 2003, resulting in the nation’s first affirmative marriage equality ruling by a state’s highest court.

Jennifer M. Lamanna represents Gallagher. The SJC received amicus briefs, all in support of Partanen’s appeal, from: C. Thomas Brown for Greater Boston Legal Services; Emily R. Shulman, Brook Hopkins, and Adam M. Cambier for the American Academy of Assisted Reproductive Technology Attorneys; Abigail Taylor, Gail Garinger, Brittany Williams and Andrea C. Kramer for the Massachusetts Attorney General’s Office; and Shannon Minter, Marco J. Quina, and Emma S. Winer for a group of law professors specializing in family law issues.  The case seems to have flown below the radar of groups that usually file opposition amicus briefs in such cases.