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Frank’s View – Inside the Mass. Supreme Judicial Court

10/14/2009

Guest Post – Frank Mancini, President & CEO of MAIA, shares his thoughts on his recent attendence of MA SJC oral arguments in the case of Arbella/MAIA v. Commissioner of Insurance. Thank you Frank for submitting this piece to Property & Casualty Speaking.

Last week I attended a session of the Massachusetts Supreme Judicial Court (SJC) to hear oral arguments in the case Arbella/MAIA v. Commissioner of Insurance. The case challenges MAIP rules instituting a two year “free ride” from MAIP assignments for new company entrants and the Commissioner’s effort to eliminate an agent’s ownership of expirations.

I’ve attended SJC sessions many times over the years. My first visit was in 1977 for oral arguments in the case, Massachusetts Association of Independent Insurance Agents & Brokers (MAIIAB) v. Commissioner of Insurance. MAIIAB was a predecessor association of MAIA. In that case the association won the right to represent its members in litigation regarding regulations. The ruling in that case provided MAIA the right to represent our members in the current litigation concerning the MAIP rules.

As I entered the John Adams Courthouse last Thursday and approached the elevator, I spotted former Insurance Commissioner John Ryan, also waiting to go up. I’ve known John for over 30 years and as we made our way up to the SJC we discussed the MAIP litigation. The irony of the meeting is that John Ryan was the Insurance Commissioner that MAIIAB challenged in 1977 that gave MAIA the right to be in court today. John has been in private practice in Boston for many years, focusing his practice on insurance. He didn’t have a dog in the fight last week, but was just interested in the case.

Before a case gets to the SJC it is usually in the court system for a while. It took Arbella/MAIA 16 months to get to the SJC from the time the case was filed. So after hundreds of thousands of dollars in legal fees and hundreds of pages of legal briefs filed with the Superior Court, Appeals Court and the SJC, the case was ready for oral arguments on October 8.

You would think that with all the time, dollars and effort put into a case like Arbella/MAIA, the oral arguments would present a profound legal debate. But the SJC isn’t interested in extended oral presentations. That’s why it gives each side only 15 minutes to make its case. Because of the multiple issues involved in Arbella/MAIA the SJC extended the time to – 18 minutes for each side.

I’m certain that each of the lawyers representing Arbella, MAIA and the Commissioner of Insurance had their presentations set to the minute. The result – none of them were able to speak for more than a minute before the first question came from one of the Justices. And the questioning continued for the remaining 17 minutes!

That’s just the way it is at the SJC. The Justices have read the briefs. They don’t want to hear the case made again. So they just question the lawyers. The SJC session comes down to how well the lawyers know their stuff, can anticipate questions and how good they are on their feet.

The lawyers representing Arbella (Roberta Fitzpatrick) and MAIA (Dean Richlin from Foley Hoag) were prepared. Both responded well to questions and were able to include in their responses points they wanted to make in their prepared remarks. The Justices seemed to “get it” at the conclusion of Arbella’s and MAIA’s 18 minutes.

The lawyer from the Office of the Attorney General, representing the Commissioner was good on his feet. He had the advantage of being last up, but also faced the same 17 minutes of pointed questions from the Justices.

After many visits to the SJC, I’ve learned that it’s difficult to determine a winner based on the questioning of the Justices. A question that makes you believe a Justice is on your side may simply be the Justice playing “devil’s advocate”. On the other hand, a question that makes you say “oh no” may be followed by one that puts the Justice in your corner.

As the oral arguments ended, the lawyers were congratulated by their supporters and we filed out of the courtroom. Former Insurance Commissioner John Ryan walked out, as did another visitor to the SJC that day, former Insurance Commissioner Nonnie Burnes. I couldn’t help but think as they walked out that both had a role in me being at the SJC last Thursday. If it wasn’t for the MAIIAB victory against John Ryan in 1977, MAIA would not have had the standing to challenge Nonnie Burnes in 2009.

Now we wait. The SJC has 120 days to issue a decision in Arbella/ MAIA v. Commissioner of Insurance. So by early February we’ll have our answers. A visit to the SJC is always an interesting and provocative experience for me. You just never know what the decision may have in store for the future. When I left the SJC after my first visit in 1977, I never would have believed that that case would have ramifications in another SJC case in 2009. I bet John Ryan didn’t either.

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One Comment leave one →
  1. anonymous permalink
    10/14/2009 1:04 pm

    Wow, this was a great read. Kudos to Frank on an insightful piece. I’m pulling for Arbella/MAIA on this one!

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