Wednesday, December 27, 2006

SJC Same-Sex Marriage Decision: Cannot Compel Legislature to Vote

Earlier today, in the case of Doyle v. Secretary of the Commonwealth, the SJC determined that while the legislature had a duty to vote on a proposed constitutional amendment, the court lacked the authority to compel them to do so. The opinion said, in part:

"We conclude that, while the plaintiffs cannot obtain declaratory judgment or mandamus against the Legislature, and, therefore, the complaint must be dismissed, it is our obligation, in these circumstances, to restate what art. 48 requires."

"Beyond resorting to aspirational language that relies on the presumptive good faith of elected representatives, there is no presently articulated judicial remedy for the Legislature's indifference to, or defiance of, its constitutional duties. We have no statutory authority to issue a declaratory judgment concerning the constitutionality of legislative action, or inaction, in this matter."

"The members of the General Court are the people's elected representatives, and each one of them has taken an oath to uphold the Constitution of the Commonwealth. Those members who now seek to avoid their lawful obligations, by a vote to recess without a roll call vote by yeas and nays on the merits of the initiative amendment (or by other procedural vote of similar consequence), ultimately will have to answer to the people who elected them."

New Teen Driving Rules

The Massachusetts Legislature is set to pass a bill today increasing the drivers ed requirements before a teen can get a license and increasing penalties for offenses committed by young drivers. Here are some highlights:

Effective March 31, 2007, new penalties:

Driving with other passengers in first six months:

  • 1st offense: 60 day license suspension
  • 2nd offense: 180 day suspension
  • 3rd offense: 1 year suspension

Junior Operator Driving between midnight and 5 am:

  • 1st offense: 60 day license suspension
  • 2nd offense: 180 day suspension
  • 3rd offense: 1 year suspension

Permit Holder driving without an adult or between midnight and 5 am:

  • 1st offense: 60 day license suspension
  • 2nd offense: 180 day suspension
  • 3rd offense: 1 year suspension

Junior Operator drag racing:

  • 1st offense: $250 plus 1 year license suspension plus $500 to reinstate license
  • 2nd offense: $500 plus 3 years license suspension plus $1000 to reinstate

Junior Operator speeding (in addition to fines):

  • 1st offense: 90 day license suspension plus $500 to reinstate license
  • 2nd offense: 1 year suspension plus $500 to reinstate

Effective September 1, 2007: New requirements to get a license:

  • 40 hours driving with parent or guardian (or 30 if you take an advances drivers ed class)
  • Parent or guardian must participate in 2 hours of drivers ed
  • Drivers ed: 6 hours observing and 12 hours behind the wheel

Tuesday, December 26, 2006

Haverhill Adopts Smart Growth Zoning

According to the Boston Business Journal, Haverhill has become the first city in the state to use the smart growth zoning alternative provided in MGL Chapter 40R to rezone a large section of its downtown. “The program makes it easier for developers to obtain permits to convert old buildings into housing and new businesses… Projects slated for the area include plans for more than 300 condos or apartments. Up to 20 percent of all housing must be sold at an affordable rate, or 80 percent of the market value, under the state's 40R rules.” Smart Growth regulations are found at 760 CMR 59. More information on smart growth is available from the Citizens’ Housing and Planning Association.

Friday, December 22, 2006

Same-Sex Partner Denied De Facto Parent Status

The Supreme Judicial Court ruled earlier this month in A.H. v. M.P. that a woman who never adopted the child of her same-sex partner, “although she was well aware of the importance of doing so,” and was not the primary caretaker for the child, did not have a legal right to visitation or a support agreement as a “de facto parent.” Further, the court declined to adopt a “parent by estoppel,” theory as defined in the ALI Principles of the Law of Family Dissolution § 2.03 (2002). saying, in part, “the parent by estoppel principle is a most dramatic intrusion into the rights of fit parents to care for their child as they see fit” and “parent by estoppel status is most appropriate where "adoption is not legally available or possible.""

Thursday, December 21, 2006

Web Ads Alone Don't Confer Jurisdiction

In Roberts v. Legendary Marine Sales, the SJC ruled earlier this month that general advertising on the web, not aimed specifically at Massachusetts residents, does not, by itself, confer personal jurisdiction over the advertiser. The court ruled that a Florida boat dealer who advertised a boat on the web could not be sued in Massachusetts, by Massachusetts residents who purchased a boat through the ad, due to lack of personal jurisdiction.

Monday, December 18, 2006

Cambridge Courthouse Suit May Go Forward

Last week, in the case of Sullivan v. Chief Justice for Administration and Management of the Trial Court, the Supreme Judicial Court ruled employees in the courthouse may sue the Chief Justice for Administration and Management over appropriate remediation of environmental concerns within the building. The SJC determined that plaintiffs had standing and that the claims were not barred by sovereign immunity. However, the court denied claims based on environmental law violations, and declined to exercise its powers of general superintendence over the court at this time. A few highlights:

1. Standing. “The plaintiffs have alleged sufficient facts to show that they are in danger of suffering serious harm as a direct result of the CJAM's purported breach of his statutory and common-law obligations. Moreover, although the plaintiffs do not allege that they have suffered actual harm, they are "not required to wait until [they are] injured before [they] can apply to a court of equity for relief," so long as the danger is reasonably imminent.”

2. Sovereign Immunity. “claims based on negligent maintenance of public property, including those against the CJAM, are not barred by sovereign immunity pursuant to G. L. c. 258, § 10 (j) (3).”

3. Public nuisance. “Because the plaintiffs have not alleged a special injury of a direct and substantial character other than that which the general public shares, a public nuisance action can only be brought by the Attorney General. Accordingly, count 3 of the plaintiffs' complaint fails to state a claim on which relief can be granted.”

4. Environmental law violations. “In the absence of any legal authority pursuant to which the plaintiffs can bring an action to enforce the environmental laws on which they rely, we conclude that count 5 of the plaintiffs' complaint fails to state a claim on which relief can be granted.”

5. Exercise of general superintendence. “The exercise of this court's general superintendence under G. L. c. 211, § 3, is not appropriate at this juncture. Accordingly, count 6 of the plaintiffs' complaint fails to state a claim on which relief can be granted.”

Friday, December 15, 2006

Prejudgment Attachment Survives Homestead

In Walsh v. Yarossi, the Land Court decided earlier this month that an attachment obtained before a homestead declaration was filed negates the homestead protection, even when the judgment was not obtained until years after the homestead. Although the defendants argued that a prejudgment attachment was not a debt, but "only a claim for such debt," the court held that "G.L. c. 223 makes the status of the Attachment as a lien clear, as well as the fact that a judgment relates back to the date of the Attachment. " For more about homestead protection, see Mass. Law About Homestead.

Tuesday, December 12, 2006

Felonies limited for deportation

The Supreme Court ruled last week that legal residents can only be deported under the Immigration and Nationality Act for acts that are felonies under the Controlled Substance Act, and not merely felonies under state law. In Lopez v. Gonzales the court ruled "Conduct made a felony under state law but a misdemeanor under the CSA is not a "felony punishable under the Controlled Substances Act" for INA purposes."
For more information about the underlying case see the Cornell preview. In this case, the government still has the discretion to initiate removal proceedings, but Lopez' prior conviction cannot be designated as a felony. See also our page on Immigration.