Date: December 19, 2018
(with first initial, no space for Sullivan, Dorsey, and
Walsh): Wilkins, Douglas H., J.
ORDER ON PLAINTIFF KEVIN OâLOUGHLINâS MOTION FOR
ATTORNEYS FEES AND COSTS
Douglas H. Wilkins Justice Superior Court
found that Kevin OâLoughlin ("Plaintiff" or
"OâLoughlin") 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. After the Court entered judgment on
June 7, 2018 the Commonwealth filed the "Commonwealthâs
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 Plaintiffâs 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.
the retroactivity issue comes first.
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 statuteâs effective date, but not before.
court previously said:
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 plaintiffâs 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.
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"). Under Porterâs 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.
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." 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
Greenawayâs Case, 319 Mass. 121, 123 (1946)
(acknowledging that the Commonwealthâs right to receive
workersâ 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 Commân, 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.
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
Commonwealthâs no-fault statutory scheme serves the sole
purpose of compensation to a private citizen for an erroneous
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 âthose erroneously convicted but
factually innocent be afforded equal opportunities to obtain
compensation.â" 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 ...