Wednesday, April 27, 2011

SJC Order Re: Bar Discipline Cases Extended

The SJC's "Order Establishing a Modified Procedure for Appeals in Bar Discipline Cases," which would have expired on April 1, 2011 has been extended until April 1, 2013. The text of the Order is below:
Order Establishing a Modified Procedure for Appeals in Bar Discipline Cases
To expedite the resolution of bar discipline appeals in this court, while ensuring that the rights of all litigants involved in such cases are protected, the Supreme Judicial Court has approved a pilot program as follows. There shall be a modified procedure for appeals from decisions of the court's single justices in bar discipline cases. All bar discipline cases entered in the Supreme Judicial Court for Suffolk County after April 1, 2009 shall be subject to this order, and to the extent that its provisions are inconsistent with the Massachusetts Rules of Appellate Procedure, this standing order shall govern. This following pilot program will be conducted for a period of two years, or until such other time as the court orders:
(a) A party aggrieved by a final order or judgment of the single justice may appeal to the full court for review of the order or judgment. A notice of appeal must be filed with the clerk of the Supreme Judicial Court for Suffolk County within ten days of entry of the final order or judgment for which review is sought. An appeal shall not stay any order or judgment of suspension or disbarment unless the single justice or this court so orders.
(b) The appeal shall initially be presented to the full court on the record that was before the single justice, together with a preliminary memorandum from the appellant and, if requested, from the appellee. The appellant shall be responsible for preparing and filing a record appendix containing copies of all the relevant papers from the single justice proceeding, including but not limited to the hearing committee report, appeal panel report, if any, board of bar overseers memorandum, the order or judgment of the single justice, and any memorandum of decision of the single justice. The appellant's preliminary memorandum, which shall not exceed twenty pages, double spaced, shall set forth the relevant background and summarize the appellant's arguments on appeal, with citations to applicable authority. It is incumbent on the appellant to demonstrate in this memorandum that there has been an error of law or abuse of discretion by the single justice; that the decision is not supported by substantial evidence; that the sanction is markedly disparate from the sanctions imposed in other cases involving similar circumstances; or that for other reasons the decision will result in a substantial injustice. Nine copies of the record appendix and preliminary memorandum shall be filed with the clerk of the Supreme Judicial Court for the Commonwealth within thirty days after the appeal has been docketed in the full court; one copy of the record appendix and memorandum shall be served on each other party. In the case of multiple appellants or cross-appellants, each appellant shall be permitted to file a preliminary memorandum within this time frame, but in such a case, the appellants shall submit, and share the cost of, a single record appendix. If requested by the court, the appellee may file a responsive memorandum, not to exceed twenty pages, double spaced, within twenty days of the court's request. Extensions of time for filing memoranda will rarely be granted and should not be anticipated.
(c) Based on its review of the parties' memoranda and the record appendix, the full court may affirm, reverse, or modify the order or judgment of the single justice without oral argument; alternatively, if any three Justices so vote, the court may direct the appeal to proceed in the regular course, in which case the parties will be permitted to file full briefs conformably with the Rules of Appellate Procedure and the case will be scheduled for oral argument.
(d) The Rules of Appellate Procedure shall apply to appeals covered by this standing order to the extent they are not inconsistent with this order.
(e) The clerk of this court for Suffolk County shall provide a copy of this standing order to the respondent attorney or his or her legal representative in each bar discipline case at the time the case is commenced in the county court, and shall remind the parties of their obligations under the order at the time she notifies them that the record has been assembled for appeal.

Tuesday, April 26, 2011

New and Amended Appeals Court Standing Orders

Last week, the SJC approved two new and two amended Appeals Court Standing Orders, effective June 1, 2011. Since these don't yet appear on the Appeals Court site, we've added a page on Appeals Court Standing Orders which links to all of them.

Appeals Court Pilot Program Requiring Appellants to File Docketing Statements in Civil Appeals

Effective June 1, 2011, the Mass. Appeals Court will begin a pilot program requiring appellants to file docketing statements in all civil appeals. According to the court:
The docketing statement will provide the court with important background information that will be useful not only when the case is entered and screened, but also while it is under consideration. The pilot program, in turn, will help us to refine the format of the form and to determine if any adjustments are required. During the course of the pilot, the docketing statement will be posted on the Appeals Court website as a PDF form that will have drop-down menus, calendars, and text that will automatically fill in certain information. Attorneys and litigants will be able to complete and save the form and then file it by e-mail.
A sample of the form is included in the notice, but it does not include the drop-down menus and other advanced features at this time.

Wednesday, April 13, 2011

Obscenity Law Changed

On April 11, Gov. Patrick signed H3318, which amends the law regarding disseminating obscenity to minors, effective immediately. Section 19 rewrites MGL c.272, s.28 to read:
Section 28. Whoever purposefully disseminates to a person he knows or believes to be a minor any matter harmful to minors, as defined in section 31, knowing it to be harmful to minors, or has in his possession any such matter with the intent to disseminate the same to a person he knows or believes to be a minor, shall be punished by imprisonment in the state prison for not more than 5 years or in a jail or house of correction for not more than 2 1/2 years, or by a fine of not less than $1000 nor more than $10,000 for the first offense, not less than $5000 nor more than $20,000 for the second offense, or not less than $10,000 nor more than $30,000 for a third or subsequent offenses, or by both such fine and imprisonment. A person who disseminates an electronic communication or possesses an electronic communication with the intent to disseminate it shall not be found to have violated this section unless he specifically intends to direct the communication to a person he knows or believes to be a minor. A prosecution commenced under this section shall not be continued without a finding or placed on file. It shall be a defense in a prosecution under this section that the defendant was in a parental or guardianship relationship with the minor. It shall also be a defense in a prosecution under this section if the evidence proves that the defendant was a bona fide school, museum or library, or was acting in the course of his employment as an employee of such organization or of a retail outlet affiliated with and serving the educational purpose of such organization.
This law has been a work in progress. In 2010, in Commonwealth v. Zubiel, 456 Mass. 27, the court held that "'[M]atter,' as defined in [the previous version of] G. L. c. 272, § 31, does not encompass electronically transmitted text, or "online conversations," for the purposes of a prosecution for attempted dissemination of matter harmful to a minor under G. L. c. 272, § 28."

In response, a new law was enacted, St.2010, c.74, s.2-3, which expanded the prohibition on the dissemination of obscenity effective July 11, 2010. It  included, in part, "electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet or wireless network."

In October, 2010, a federal court issued a preliminary injunction barring enforcement of MGL c.272, s.28 and s.31 in American Booksellers Foundation for Free Expression v. Coakley, holding that the law was overly broad and violated the First Amendment.

This new law, then, was enacted in response to those concerns. More information is available at Mass. Law About Obscenity.

Wednesday, April 06, 2011

Medication Errors and Pharmacy Complaint Forms reported this morning an incident of a pharmacy's prescription error and said that the customer would be filing a complaint with the Pharmacy Board. That led us to wonder how a consumer would file such a complaint. The Commonwealth's Health and Human Services webpage has an explanation of the Complaint process, as well as links to the Dept. of Public Health's complaint forms for Pharmacy BoardDental, Nursing, Genetic Counselling, Physician Assistant and more.

Information on this and other health care issues is available at Mass. Law About Health Care.