Drunk Driving: Romney Responds

Governor Romney has responded to the drunk driving bill passed by the House and Senate last week by sending three proposed amendments back with the bill. These amendments: 1) allow "prosecutors to introduce certified copies of court, registry, department of corrections or probation documents to prove that a repeat offender has been previously convicted of drunk driving," 2) "restore the provision tightening license suspensions imposed for drivers who repeatedly refuse to submit to a breathalyzer test," and 3) "reinstate the mandatory minimum 5 year jail sentence for anyone found guilty of manslaughter by motor vehicle." Read more in the Boston Globe.

Elder Abuse

We've added a substantive new site to Law About Elders' Issues. The Massachusetts Elder Abuse Law is part of a content-rich site from the Attorney General's Elder Abuse Project, funded by the Office on Violence Against Women at the United States Department of Justice. Site includes a summary of the key provisions of the law, reporting requirements, regulations, and links to reporting forms and an "elder abuse quick reference guide."

Harriet Miers Withdraws

According to the Associated Press, Harriet Miers has just withdrawn as a Supreme Court nominee. CNN reports that "in the statement, Miers said her nomination presented a 'burden for the White House.'"

Nicole's Law

The House and Senate have both passed Nicole's Law, S2152, which requires carbon monoxide detectors in homes. Devices will be required in any residence that "(1) contains equipment fossil-fuel burning equipment including, but not limited to, a furnace, boiler, water heater, fireplace or any other apparatus, appliance or device; or (2) incorporates enclosed parking within its structure." The law is named for 7-year-old Nicole Garofalo who died in January 2005 when a heating vent in her house was blocked by snow drifts, allowing carbon monoxide to accumulate in the home. The Governor is expected to sign the measure in the next few weeks. More information is available from The Republican, the Boston Globe, and State Senator Therese Murray.

Dog as a Dangerous Weapon

A recent Appeals Court Decision, Commonwealth v. Fettes, 64 Mass.App.Ct. 917 (October 18, 2005) states "A dog can be a dangerous weapon. A dangerous weapon is 'any instrument or instrumentality so constructed or so used as to be likely to produce death or great bodily harm.' There can be little doubt that a dog . . . used for the purpose of intimidation or attack falls within this definition." The case is linked from both Law About Animals and Law About Weapons.

Executive Orders

Invisible until you need them, all Mass. Executive Orders are available on our site, as well as an index to help you find them. Federal Executive Orders are available from the National Archives.

Sexually Dangerous Persons

While much attention is paid to sex offender registries, through which sex offenders in the community must identify themselves, less notice has been taken of the Sexually Dangerous Persons law, which provides for civil commitments of a day to life in the Massachusetts Treatment Center after an offender's criminal sentence is completed. An article in yesterday's Boston Globe about the increase in the number of commitments to the Treatment Center and today's letter to the editor in response have brought the issue to the forefront. Law About Sex Offenders includes links to other sources on the topic, particularly Sexually Dangerous Person Commitments from the Committee for Public Counsel Services. This site includes a great outline of the SDP Commitment procedure.

Eviction Storage Law

Late last year, a new law went into effect, c.271 of 2004, which amended MGL c.139 and c.105, and provides some additional regulation regarding the storage of belongings of former tenants. Mass. Legal Help has, as always, come up with a great source: New Eviction Storage Law: Protecting the Belongings of Tenants Facing Eviction, April 2005. The booklet includes who is covered by the law, storage company responsibilities, tenant's rights, and sample letters and forms, and is now linked from Mass. Law About Eviction.

Pro Se Litigants

We've created a new page, Law About Self-Represented Litigants, to collect the varied sources about and for those proceeding without an attorney. Sources about the self-represented include:

Pro Se Resources from the American Judicature Society. This extensive site features many reports, some national in scope; some particular to individual states. Reports and articles include Legal Information vs. Legal Advice, Meeting the Pro Se Challenge, Courts and the Self-Represented, and Reaching Out or Overreaching: Judicial Ethics and Self-Represented Litigants.

and Report of the Boston Bar Association Task Force on Unrepresented Litigants, 1998. This report is specific to Massachusetts and includes District Court, Housing Court, Superior Court and Appellate Courts. Recommendations include increasing the availability of attorneys, more accessible courthouses, more direct assistance from courthouse staff, and increased use of alternative dispute resolution.

Sources for the self-represented include two pamphlets: Before Asking for Help from the Mass. Probate and Family Court. "This booklet contains a list of some of the things the court staff can and cannot do for you." Despite the negative title, this actually lists many things court staff can and should do in assisting pro se litigants. Before Going Into Court "contains ten helpful tips about how to conduct yourself in court. Please read them carefully before entering the courtroom." Basic information, but it takes some of the fear of the unknown out of a court appearance.

Drunk Driving Compromise Bill

After passing different drunk driving bills last week, the House and Senate have both approved a compromise drunk driving bill, H4446. The compromise is softer than bill proponents had hoped, but stronger than the earlier House bill. The bill includes the definition of a new crime, drunk driving with a child, the requirement of ignition interlock devices in some cases, and new minimum mandatory sentences. But those sentences are not as severe as supporters had hoped, and the law does not include a provision they felt was key, allowing certified court records to prove prior convictions, rather than requiring testimony. Governor Romney expressed disappointment with the bill, but the House and Senate appear to have the votes to override a veto.

Home Improvement Contractors

The Home Improvement Contractor Registration Program from the Board of Building Regulations and Standards has information for contractors and for consumers, including forms to register, forms to file a complaint, explanation of the law, and a method to check a contractor's registration. Their site has been added to Law About Home Improvement.

Smoking by Minors

Under Mass. law, it is illegal to sell or give tobacco products to anyone under 18, but the law does not specifically prohibit minors from possessing or smoking cigarettes. Some cities and towns, however, may have stricter ordinances. In an 1998 John F. Kennedy Library newsletter, for example, mention is made of two Lynn city ordinances. "The first ordinance requires Lynn's Health Department not only to invoke strict fines and revocation of permits on the sale of cigarettes to minors, but also to include an extensive and detailed educational component. The second ordinance makes it illegal for minors to smoke or possess tobacco products of any kind within Lynn city limits." To find out if your town has such restrictions, look at the city and town ordinances linked from this site. The Department of Public Health also has an extensive list of local officials responsible for anti-smoking initiatives.

Laws that prohibit smoking by minors are not without controversy. This, for example, is from a 1999 article, Northbridge student has his bill approved to restrict smoking: "Teen-agers from the North Shore testified in favor of bills that would increase penalties for the sale of tobacco to a minor to the same level as those assessed for selling alcoholic beverages to anyone under 21, and make it illegal for a minor to possess tobacco. But the committee held up action on those bills when they ran into opposition from the Massachusetts Coalition for a Healthy Future, which expressed concern that outlawing possession by anyone under 18 could make smoking more attractive to teen-age "rebels" and play into the hands of the tobacco industry by taking the spotlight off those responsible for supplying tobacco to minors. "

In part to reduce minors' access to cigarettes (and in part to collect required taxes), the Mass. Attorney General has pursued an action against online cigarette sellers. In February 2005, he "announced the entry of a consent judgment in a consumer protection lawsuit brought against eSmokes, Inc., an Internet cigarette retailer. The Suffolk Superior Court order requires the Virginia company to comply with a Massachusetts age-verification regulation, to give Massachusetts consumers certain notices about the purchase of cigarettes from companies that have not paid Massachusetts cigarette taxes, and to make cigarette sales reports required by the federal Jenkins Act." This month, the Boston Globe reported that eSmokes was turning over a customer list to the Attorney General to further the collection of taxes.

Links to more information about smoking in Massachusetts are available on our page, Mass. Law About Smoking.

Dam Safety

The threat to the Taunton dam appears to be lessening, but it has certainly increased awareness of dam safety in Massachusetts. Governor Romney has ordered a review of all high hazard dams. The Association of State Dam Safety Officials has a good summary of Massachusetts Dam Safety laws and regulations available. Chapter 253 of the General Laws covers dams, and sections 44-50A in particular deal with dam safety. The regulations, 302 CMR 10, go into more specific detail about design, safety, inspection and more. Contact information for the Office of Dam Safety is available in A Citizen's Guide to State Services.

Duty to Bury

Several times recently we've been asked whether a husband or wife has an obligation to pay for the burial of their deceased spouse. While we have a page on the law about burial, none of the statutes or regulations linked there seem to create a duty. Common law, however, provides the answer:

Durell v. Hayward, 75 Mass. 248 (1857) says: "The indisputable and paramount right, as well as duty, of a husband, to dispose of the body of his deceased wife by a decent sepulture in a suitable place, carries with it the right of placing over the spot of burial a proper monument or memorial..."

Vaughan v. Vaughan, 294 Mass. 164 (1936) says: "In this Commonwealth the right to possession of the dead body is in the surviving husband or wife, with the duty of burial, and not in the executor or administrator where there is no expressed wish of the testator as to the disposition of the remains."

Finally, the Elder Law Center summarizes it this way: "In Massachusetts, the wishes of the decedent govern the disposition of remains. If there are no expressed wishes, the decedent's surviving spouse has the right to possession of the body, with the duty of burial. If there is no surviving spouse, the next of kin have the right to possession, with the duty of burial. In the event of conflict, the desires of the surviving spouse supersede those of next of kin."

Displaced Attorneys

On October 6, 2005, the Supreme Judicial Court issued an order allowing lawyers displaced by Hurricane Katrina to practice in Massachusetts.

Mechanics' Liens

We've added Mechanics' Liens forms from Sauer Construction Law to our forms page. This resulted in some restructuring. We've added a page, Law About Mechanics' Liens, which has links to a few articles explaining the Mass. Mechanics' Lien statute, and provides a gateway to the forms.

Library Thing

Not about Massachusetts, not about law, but too cool to be denied. For everyone with a home library that seems out of control, we bring you Library Thing. Inventory your books, add keywords to help you find them, add reviews if you like, and then view the covers of all your books. Here's a sample library so you can see what we mean. Yowza!

Heat!

On a day that's 52 degrees and feels much colder, it's time to review the state's heating requirements. We've added the Minimum Heating Guidelines for workplaces to Law About Hours and Conditions of Employment. Basically, they require heat to be provided ranging from 50-60 degrees in foundries to 66-68 degrees in schools between October 15 and May 15. Contrast that with the much warmer requirements for residential property in the State Sanitary Code. 105 CMR 410.201 requires temperatures of at least 64 degrees at night and 68 degrees during the day. Residential heat also has to be provided for a longer period of time: from September 15 to June 15. There can be exceptions, so be sure to read the regulation for details.

Spam

An article in the October 12, 2005 Boston Globe, Spammers must shut websites, judge says, got us rolling on the topic of spam. We've added a number of great sources to Law About Spam and Junk Mail. First is the decision referenced in the Globe article, Commonwealth v. Kuvayev, from Suffolk Superior Court. CAN-SPAM Act of 2003, P.L. 108-187 is the federal law "to regulate interstate commerce by imposing limitations and penalties on the transmission of unsolicited commercial electronic mail via the Internet." The FTC's site, Spam, does a good job of explaining the issues. Divided into several sections, this site holds a deceptively large amount of information. For Consumers includes current spam alerts and tips on avoiding spam. For Business covers securing a server and how to send commercial email legally. Reports contains links to several substantive reports to Congress, including. Finally, Rules and Acts includes not just the law itself, but also definitions, implementation, and reporting requirements under the CAN-SPAM Act.

Lemon Laws

We've just added the Wheelchair Lemon Law to the Popular Name Table, and so this is a good time to point out three other lemon laws. The most well-known are the Used Car Lemon Law and the New Car Lemon Law, but there is also a Lemon Law for Pets!

Our Unsung Heroes

We're thrilled to announce the nomination of four of our staff members as "unsung heroes" in the October 10, 2005 issue of Massachusetts Lawyers Weekly. Richard Adamo of the Essex Law Library, Andrew Montalto and Linda Hom from the Middlesex Law Library and Diane Connell from the New Bedford Law Library were among thirteen nominees in the law librarian category. Here is why they are so deserving. Richard Adamo has a passion for life and for his work. When asked once why he rarely takes a vacation, he said "I'm never leaving this library. They'll have to bury me here!" He is an active member of the legal community in Salem, and greets most customers by name. He always goes the extra mile to find an answer, and does so with enormous grace and humor. Diane Connell has worked for the law libraries for over 10 years, in both Taunton and New Bedford. Her unique gift is the ability to guide a customer through the legal research process in a human, gentle way. She always stays at a customer’s side until they have reached the end of their research trail, whether what they need is help finding a book, instruction in using the computer, or just a kind voice to help them through a difficult time. Linda Hom has a perpetual smile on her face, and greets everyone with a sincere manner. She listens to people. And she hears stories, ---lots and lots of stories. Cambridge brings in quite a variety of people with many disparate needs, and Linda does everything she can to help them. It could be a somewhat forgetful patron who returns to ask the same question week after week, or an agitated one who needs special attention. Yet in this atmosphere, attorneys know they can approach the desk and get the help they need. She has an incredible memory for people and names, and makes everyone feel remembered. Andrew Montalto brings another sunny disposition, with more than a touch of creativity, humor, and a fearless approach to any question. His experience with computers and networking has greased the wheels of a sometimes-clunky combination of equipment to try to meet the growing needs of a sophisticated audience. He has a very curious mind, and has a knack for finding obscure information electronically. Richard, Diane, Linda and Andrew show us the very best in customer service, and we are proud to have them on our staff.

Melanie's Bill

Work continues at the State House on Melanie's Bill, a law enhancing the penalties for drunk driving, named after 13-year-old Melanie Powell, who was killed by a repeat drunk driver in 2003. On September 28, 2005, the House passed a weakened version of the law, H4403. While not yet available online, this bill is nearly identical to H4383, with six additional sections. In part, those sections do the following: provide for a 15 year license suspension if a motor vehicle is used in manslaughter under c.265 s.13, establish a commission ot study the punishment of drunk drivers, and establish that a person convicted of drunk driving with a child under 12 in the car is guilty of child endnagerment. The following day, the Senate passed a much stronger version of the law, S2219. Key differences in the senate version include: required installation of an ignition-locking device, a new crime of manslaughter by motor vehicle, raising the age of child endangerment to 16, and mandatory alcoholism treatment for repeat offenders. Since the two versions were different, the legislation has gone to conference committee. More information is available at the Boston Globe and Patriot Ledger.

Emergency Management

The Comprehensive Emergency Management Plan from MEMA is available in Word format. It covers 17 areas, including the obvious, like transportation and communication, and the more unusual, like donations and animal protection. FEMA's ReadyAmerica site has information about a host of natural disasters, including Earthquakes, Extreme Heat, Fires, Floods, Hurricanes, Landslide and Debris Flow (Mudslide), Thunderstorms, Tornadoes, Tsunamis, Volcanoes, Wildfires and Winter Storms and Extreme Cold.

Slot Machines

The Massachusetts Senate yesterday approved a bill, S2227, to permit slot machine gambling at the state's racetracks. The bill now moves to the House, but the Boston Globe reports that the House is not in a hurry to take up the measure. State House News Service reports that "the chances for introduction of slot machines at the state's racetracks are in fact probably better than they've ever been. They're just not good enough."

Identity Theft

Identity Theft from the Mass. State Police has been added to Law About Identity Theft. It includes: What is identity theft?, How significant is the problem?, How is it committed?, How can you avoid becoming a victim? and What should you do if you are a victim?.

Same Sex Marriage

The SJC heard oral arguments today on the 1913 state law barring marriages for out of state couples when the marriage would not be legal in their home state. The case is Cote-Whitacre v. Dept. of Public Health.

SJC Oral Argument Archive

Our Mass. Case Law page has been amended to reflect the new archive available of SJC oral arguments.

New Format!

The format of the "what's new" page has changed to blog form, to allow incorporation of more legal and library news as well as the basic information about website updates.