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O’Loughlin v. Commonwealth of Massachusetts

Superior Court of Massachusetts, Suffolk

December 11, 2018

Kevin O’Loughlin
v.
Commonwealth of Massachusetts et al.

          File Date: December 19, 2018

          Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wilkins, Douglas H., J.

          ORDER ON PLAINTIFF KEVIN O’LOUGHLIN’S MOTION FOR ATTORNEYS FEES AND COSTS

          Douglas H. Wilkins Justice Superior Court

         A jury found that Kevin O’Loughlin ("Plaintiff" or "O’Loughlin") had been erroneously convicted of child rape and awarded $5, 000, 000 in damages against the Commonwealth of Massachusetts ("Commonwealth") under the erroneous conviction statute, G.L.c. 258D.[1] After the Court entered judgment on June 7, 2018 the Commonwealth filed the "Commonwealth’s Rule 59(e) Motion to Amend Judgment (dkt. #100)" ("Rule 59 Motion"), which the Plaintiff has opposed. On June 29, 2018, the Court denied the Rule 59 Motion, but reserved decision on the question of attorneys fees and costs, including (1) whether the Plaintiff’s request for attorneys fees is governed by the recent amendments to G.L.c. 258D, § 5(A) (see St. 2018, c. 69, §§ 116-24, effective April 13, 2018) and, if so, (2) what amount is fair and reasonable.

         I.

         Logically the retroactivity issue comes first.

         This case was filed in 2015, long before the 2018 amendments. It went to verdict after the 2018 amendments became effective. In ruling upon the Rule 59 Motion, the court found this case most similar to Porter v. Clerk of the Superior Court, 368 Mass. 116, 118 (1975), which applied the so-called "practice [and] procedure" rule to a situation where the statutory interest rate changed during the pendency of the litigation. Cf. also Fontaine v. Ebtec Corp., 415 Mass. 309, 320 n.11 (1993) (approving retrospective application of a statutory amendment allowing the MCAD to award attorneys fees, albeit as a means to provide a remedy commensurate with the remedy already existed for cases that went to suit in state or federal court). In Porter, 368 Mass. at 118-19, the court held that an increase in the statutory interest rate applied to periods after the statute’s effective date, but not before.

         This court previously said:

         G.L.c. 258D, § 6, as amended by St. 2018, c. 69, § 121 states: "A claimant who prevails in an action under this chapter shall be entitled to an award of the costs of the litigation and reasonable attorneys fees in an amount to be fixed by the court. This provision cannot apply until at least the jury verdict, because not until then does the plaintiff "prevail[ ]." The court therefore awards attorneys fees and costs under the amended statute. See also Martinez Rodriguez v. Jimenez, 551 F.2d 877, 878-79 (1st Cir. 1977) (applying attorneys fees provisions of 42 U.S.C., § 1988 to a case pending on the statutory effective date). The trickier question is whether it may award fees and costs for the entire litigation, or only for the period after the effective date of St. 2018, c. 69. For purposes of ensuring an adequate record for appellate review, the court will consider the plaintiff’s entire fee petition and determine what award is appropriate both for the entire litigation and for the portion after the effective date of the 2018 amendments. When it issues a decision on attorneys fees and costs, the court will decide whether to do so the entire period of the litigation and invites further briefing on that question.

         Here, although attorneys fees accrued throughout the case, there is no entitlement to reimbursement until the very end of the trial. Indeed, the entire rationale for denying interest upon attorneys fees awards is that the obligation to pay attorneys fees does not exist until the plaintiff prevails. See International Totalizing Sys., Inc. v. PepsiCo, Inc., 29 Mass.App.Ct. 424, 437 (1990) ("Interest on the portion of the award representing attorneys fees should ... be calculated from the time judgment was entered on the c. 93A claim").[2] Under Porter’s rationale, then, not until the verdict (or possibly later) does the case reach the relevant point for assessing what law applies to attorneys fees. Here, the verdict occurred after the effective date of the 2018 Amendments. It follows that the plaintiff is entitled to a full attorneys fees award.

         Broader principles provide independent support for that result. The concerns for retroactivity arising from lack of notice to defendants before they act, or creating incentives to avoid misconduct therefore have no application here. See Martinez Rodriguez v. Jimenez, 551 F.2d 877, 878 n.4 (1st Cir. 1977). As this court previously acknowledged, Fontaine, 415 Mass. at 320, states that "legislation limiting or increasing the measure of liability, while arguably remedial in the broad sense of that word, generally is considered to impair the substantive rights of a party who will be adversely affected by the legislation."[3] By contrast, c. 258D is purely remedial, having no relationship to fault or conduct by the Commonwealth. See Guzman v. Commonwealth, 458 Mass. 354, 360 n.9 (2010). When the Commonwealth is the defendant, particularly in a no-fault system such as that established by c. 258D, concerns about retroactivity may not apply:

An exception may concern legislation that affects the substantive rights of the Commonwealth. Such legislation generally has been given retrospective application. See Greenaway’s Case, 319 Mass. 121, 123 (1946) (acknowledging that the Commonwealth’s right to receive workers’ compensation funding from city was a substantive right, but giving retrospective application to legislation reducing the amount required to be paid).
Massachusetts Bd. of Regional Community Colleges v. Labor Relations Comm’n, 377 Mass. 847, 850 (1979), on which the plaintiff relies, gives retrospective effect to legislation augmenting the remedies available to an employee of the Commonwealth who claims to have been discriminated against because of union activity. It is obvious that this legislation impairs the substantive rights of the Commonwealth. We have nonetheless considered it appropriate to give retrospective application to such legislation because the legislation does not adversely affect the rights of private parties. Id.

         Fontaine, 415 Mass. at 319 n.10. The examples cited in footnote 10 include both a "no-fault" system as between governmental units (Greenaway) and one involving liability based upon fault in the form of discrimination (Mass. Bd.). If retroactivity is appropriate in those situations, it is all the more appropriate where the Commonwealth’s no-fault statutory scheme serves the sole purpose of compensation to a private citizen for an erroneous conviction.

         Retroactive application-or interpreting Porter as allowing attorneys fees in full based upon the stage of proceedings at which they are awarded-is particularly appropriate here. Chapter 258D was enacted "in 2004 in response to the steady increase in exonerations in Massachusetts and throughout the nation." Peterson v. Commonwealth,478 Mass. 434, 436 (2017). Its purpose is "to ensure that ‘those erroneously convicted but factually innocent be afforded equal opportunities to obtain compensation.’" Renaud v. Commonwealth, 471 Mass. 315, 317 (2015), quoting Irwin v. Commonwealth,465 Mass. 834, 847 (2013). "[T]raditional civil and tort remedies have been noted to be lacking in providing sufficient redress." Guzman v. Commonwealth,458 Mass. 354, 355 n.3 (2010). See also Carter v. State,154 A.D.2d 642, 650; 546 N.Y.Sup. 648 (N.Y.App.Civ., 2nd Dept. 1989) ("the state assumed a moral obligation to compensate innocent persons who have been unjustly convicted and imprisoned but who were otherwise barred from recovery because of the difficulty almost inevitably encountered by such persons in ...


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