Norfolk County towns struggle with pot law.

 Medicinal marijuana, supported by nearly two-thirds of Massachusetts voters on Nov. 6, is getting a much cooler reception from the Norfolk County officials who will have to administer the new law.

Despite the fact that Norwood residents voted in favor of the law 7,766 to 6,144, according to Wicked Local, Norwood Police Chief William Brooks said he did not believe marijuana had medical properties or that legalizing it for medical use would benefit Massachusetts.

For more information about medical marijuana visit our webpage:
Massachusetts Law About Prescription Medication.

First animal in the state to win 209a protection

According to the Patriot Ledger, Panzer, a six year old labrador mix is the first animal in the state to win protection from a new state law that allows pets in danger to be included in domestic violence restraining orders. For more information about 209A restraining orders see our page on Domestic Violence.

New SJC Rule Will Require Professionalism Course

The SJC has issued new Rule 3:16: Practicing with Professionalism Course for New Lawyers. This rule is not effective until September 1, 2013, and applies only to attorneys admitted to the bar on or after that date. The rule will require all new lawyers to "complete a one-day, in-person, mandatory Practicing with Professionalism Course approved by the Supreme Judicial Court or its designee."

SJC Rules on Segregated Confinement

In LaChance v. Commissioner of Correction, decided November 27, the SJC concluded that more procedural safeguards are required for inmates being held in segregated confinement for a significant period of time. The court said, in part:

We conclude that LaChance's ten-month administrative segregation in the SMU on awaiting action status, during which he had the benefit of only informal status reviews, was unlawful. ...

We conclude that LaChance's ten-month placement in the SMU constituted the sort of "atypical and significant hardship" that triggers a right to procedural safeguards....

We conclude that an inmate confined to administrative segregation on awaiting action status, whether such confinement occurs in an area designated as an SMU, a DSU, or otherwise, is entitled, as a matter of due process, to notice of the basis on which he is so detained; a hearing at which he may contest the asserted rationale for his confinement; and a posthearing written notice explaining the reviewing authority's classification decision. ... Although we leave it to the DOC to promulgate regulations that reflect the balance of these interests, we conclude that in no circumstances may an inmate be held in segregated confinement on awaiting action status for longer than ninety days without a hearing. 

PIRG'S 2012 Trouble in Toyland toy safety report.

http://bit.ly/WuyUky

The 2012 Trouble in Toyland report is the 27th annual U.S. Public Interest Research Group survey of toy safety. In this report, U.S. PIRG provides safety guidelines for consumers when purchasing toys for small children and provides examples of toys currently on store shelves that may pose potential safety hazards.

Code of Judicial Conduct Amended

Canon 4 of SJC Rule 3:09, Code of Judicial Conduct, pertaining to extrajudicial activities, has been amended effective January 1, 2013. Amendments include a new comment to Canon 4B on speaking about the administration of justice:

"Speaking to the Public about the Administration of Justice: To further public understanding of the essential role of the judicial branch in our system of government, judges are particularly encouraged to speak to the public, including business and community groups, about issues relating to the administration of justice. A judge must avoid giving the impression that the group or its members are in a special position to influence the judge, and where appropriate, a judge must avoid giving the impression that the judge favors the group's mission."

In-State Tuition for DACA Beneficiaries

The Mass. Dept. of Higher Education has released a Fact Sheet on In-State Tuition for DACA Beneficiaries. Deferred Action for Childhood Arrivals (DACA) is a new federal policy.

"This policy states that the federal government will “defer action” or not prosecute deportation cases for qualifying individuals for a period of two years from the time their application for “deferred action” is approved. If approved, DACA beneficiaries will receive work permits in addition to deferred action status."
"In accordance with this change in federal policy, the Administration has determined that under the existing Board of Higher Education policy, DACA beneficiaries are eligible for instate tuition at our 29 public campuses as long as they meet the Board’s other residency requirements for those institutions."

The fact sheet details the requirements to qualify for DACA. More information on DACA is available at our Law About Immigration.

Trial Court Law Libraries' Holiday Hours

Wednesday November 21:

All libraries open regular hours. No online reference services.

Thursday November 22:

All libraries CLOSED. No online reference services.

Friday November 23:

No online reference services. 

The following law libraries will be CLOSED:

• Bristol
• Fitchburg
• Franklin
• New Bedford

The following law libraries will be OPEN:

• Barnstable
• Berkshire
• Brockton
• Essex
• Fall River
• Hampden 
• Hampshire
• Lawrence
• Lowell
• Norfolk
• Middlesex (closing at 3 pm)
• Plymouth
• Worcester

Adultery in Massachusetts

The Boston Globe published an article today, Mass. Among 23 States Where Adultery is a Crime, But Rarely Prosecuted. We thought we'd provide a little substantive law as background. The adultery statute in Massachusetts is MGL c.272, s.14,  which reads:

A married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.

In a 1983 case, Comm. v. Stowell, the Mass. Supreme Judicial Court held that the adultery law was constitutional, saying, in part:

"Whatever the precise definition of the right of privacy and the scope of its protection of private sexual conduct, there is no fundamental personal privacy right implicit in the concept of ordered liberty barring the prosecution of consenting adults committing adultery in private."

...

We are not unaware that the public policy against adultery is most often expressed in these divorce proceedings and that the crime of adultery is rarely made the subject of criminal prosecution...'To recognize that fact is not to say that [this statute has] become invalid or judicially unenforceable'....The statute remains as a permissible expression of public policy. If any lack of prosecution of the crime of adultery indicates a general public disfavor with the statute, appropriate means exist to address such disfavor to the Legislature, which has the power to change or repeal the statute.

Fordham Law Review has an interesting article on the issue nationwide: How the Establishment Clause Can Influence Substantive Due Process: Adultery Bans After Lawrence, 79 Fordham Law Reivew 605 (2010), which is available to our cardholders for download via HeinOnline.  More information on other Massachusetts laws about sexual conduct is available at our Mass. Law About Sex.

New EBook: Rules for Probation Violation Proceedings

We have added a new ebook to the collection of rules ebooks available at no charge: Mass. District Court Rules for Probation Violation Proceedings. This is the tenth ebook produced by our staff.

You can find the full list of court rules ebooks with directions for their installation at EBooks: Mass. Court Rules and Documents.

Double Jeopardy and Restructured Sentences

In Comm. v. Leggett, decided today, the Appeals Court was called on to "measure a reconstructed sentencing scheme against the standards of the prohibition against double jeopardy." The court ruled that "when a defendant is convicted of both an underlying offense and [a related offense], he reasonably cannot have a legitimate expectation of finality in a portion of the total sentence, even if he has fully served that portion." 

In this case, the defendant served a portion of his original sentence upon four convictions, and then moved successfully for resentencing by a different judge. "He contends that the resulting scheme punishes him twice for two of the convictions and thereby violates the ban against double jeopardy. No prior Massachusetts decision appears to have encountered our question squarely." The court continued,

"A judge's sentencing scheme for a defendant convicted of multiple offenses at one trial is typically an integrated plan and not a mechanical formation of separate sanctions...The vacation of a sentencing scheme creates a clean slate for resentencing.

While there is a reasonable expectation of finality, "a legitimate expectation of finality does not extend to each individual sentence within an aggregate scheme for multiple convictions. The prisoner does not have a reasonable expectation of finality in any one part or element of the total bundle of sentences, but rather in the entirety of the scheme." 

"We join [other] circuits in concluding that when a defendant is convicted of both an underlying offense and [a related offense], he reasonably cannot have a legitimate expectation of finality in a portion of the total sentence, even if he has fully served that portion." ...

"In addition, a rule of component sentence finality would operate redundantly with the restrictions established by a reasonable expectation of finality for the aggregate scheme, with quantitative fairness, and with anti-vindictiveness. The defendant's realistic, and therefore reasonable, reliance rests on the "bottom line" of the aggregate sanctions and not on its constituent intervals.

Berry, J., dissented.

SJC Issues Standing Order Re: Drug Lab Cases

The Supreme Judicial Court has issued a standing order regarding assignment of judges to cases involving allegations of misconduct at the William A. Hinton State Laboratory Institute. Dated November 9, 2012, it says:

This Order is issued to facilitate the handling of matters  related to allegations of misconduct at the William A. Hinton State Laboratory Institute.  To further the expeditious handling of such matters, and notwithstanding any provisions to the contrary in any Rule of Court or Standing Order, it is hereby ORDERED that a Chief Justice of a Trial Court Department may assign for all purposes, including disposition, any post conviction motion in which a party seeks relief based on alleged misconduct at the Hinton State Laboratory to any judge of that Trial Court Department.  The assigned judge may reassign the motion to the original trial judge where the interests of justice require.

This Order is effective immediately and shall remain in effect until further Order of this Court. 

Effective Dates for New Same-Sex Marriage Laws

This week, three states passed same-sex marriage laws: Maine, Maryland and Washington. Here is what we were able to determine about when same-sex couples can marry in those states:

Maine: According to the Bangor Daily News: "The secretary of state has 20 days to approve election results and send them on to the governor, Megan Sanborn said. Gov. Paul LePage then has 10 days to certify the results. The law goes into effect 30 days after the governor certifies election results, Sanborn said." Thus, "Same-sex couples in Maine should be able to obtain marriage licenses by Jan. 5 and get married the same day."

Maryland: The only one of the three with an explicit effective date, this law takes effect on January 1, 2013. but "a license is not effective until 6 a.m. on the second calendar day after the license is issued," so presumably couples can get a license January 1, but cannot marry until  January 3, 2013. 

Washington: This law becomes effective after the election results are certified. According to the Secretary of State, "December 6, 2012 is the last day for the Office of the Secretary of State to certify the returns." There is a three day waiting period after getting a license before you can marry. It appears, then, that the first day to marry is December 9, 2012.

More information on these and other same-sex marriage laws is available at Law About Same-Sex Marriage.

Ban on Mandatory Overtime for Nurses Effective Today

MGL c.111, s.226 as added by St.2012, c.224, s.103, bans mandatory overtime for nurses except in emergency situations. Here are some highlights of the new law:

• Nurses cannot be regularly scheduled for more than "12 hours in any 24 hour period."
• A "hospital shall not require a nurse to work mandatory overtime except in the case of an emergency situation where the safety of the patient requires its use and when there is no reasonable alternative."
• In an emergency, "the facility shall, before requiring mandatory overtime, make a good faith effort to have overtime covered on a voluntary basis. "
• "Hospitals shall report all instances of mandatory overtime and the circumstances requiring its use to the department of public health."
• "A nurse shall not be allowed to exceed 16 consecutive hours worked in a 24 hour period. In the event a nurse works 16 consecutive hours, that nurse must be given at least 8 consecutive hours of off-duty time immediately after the worked overtime."

MUPC Advisory and New and Modified Forms Issued

The Probate and Family Court Department issued a Procedural Advisory on Estate Administration Matters on October 26, 2012. This document provides a general summary of changes to the MUPC as a result of St.2012, c.140, which modified the MUPC and was signed July 8, 2012. The court plans to issue a separate advisory on trust procedures in November. According to the Press Release, the following forms have been changed or added:

"The following forms have been revised:

• MPC 801- Bond 
• MPC 255- Petition for Informal Appointment of Successor PR 
• MPC 760- Order for Informal Appointment of Successor PR  MPC 270- Petition for Formal Appointment of Successor PR 
• MPC 765- Decree and Order for Formal Appointment of Successor PR 
• MPC 264- Statement of Resignation of PR 
• MPC 550- Notice of Informal Probate 

"The following new forms are now available:

• MPC 455- Assent and Waiver of Notice/Renunciation/Nomination/Waiver of  Sureties 
• MPC 941- Instructions for MPC 455 "

New and revised forms are included in the Court's main MUPC Forms page.  More information about the MUPC can be found at our Mass. Law About Wills and Estates. 

Forms and Procedures for Protecting Pets in Abuse and Harassment Cases

The Trial Court has released a memo on new MGL c.209A, s.11, added by St.2012, c.193, effective October 31, 2012. The law "provides that in certain circumstances, a court may order 'possession, care, and control of any domesticated animal owned, possessed, leased, kept or held by either party or a minor child residing in the household to the plaintiff or petitioner.'  The court may also 'order the defendant to refrain from abusing, threatening, taking, interfering with, transferring, encumbering, concealing, harming or otherwise disposing of such animal.'"

It is important to note that, although the new law is part of c.209A, it applies to proceedings under several statutes:  "Whenever the court issues a temporary or permanent vacate, stay away, restraining or no contact order or a judgment under section 18, 34B or 34C of chapter 208, or under section 32 of chapter 209, or under section 3, 4 or 5 of [c.209A], or under section 15 or 20 of chapter 209C, or under section 3 to 7, inclusive, of chapter 258E or a temporary restraining order or preliminary or permanent injunction relative to a domestic relations, child custody, domestic abuse or abuse prevention proceeding."

The memo from the Chief Justice of the Trial Court and the Court Administrator summarizes the law, explains procedures and includes two forms: a petition and an order.

SJC Releases Report on OUI Acquittal Rates

The Supreme Judicial Court has released the report of Special Counsel R.J. Cinquegrana on acquittal rates for Operating Under the Influence in the Boston Municipal Court and District Court Departments. The inquiry was originally confidential, but, according to the statement of the Justices,

"Because the Report provides a thoughtful and careful analysis of systemic issues that affect the rate of conviction in OUI cases, and presents recommendations that warrant consideration by the Judiciary, prosecutors, police, the Legislature, and the general public, we have decided to release the Report to the public." 

The report itself is nearly 150 pages long, and contains detailed statistical analysis, study of the laws in Massachusetts and other states, and specific recommendations.  This and other reports on the Mass. courts are available at About the Massachusetts Court System.

Rules of Professional Conduct Amended

Effective January 1, 2013, Massachusetts Rules of Professional Conduct (SJC Rule 3:07)  Rules 1.5 and 6.5 have been amended.

Rule 1.5, Fees, has a new subsection (b) regarding written fee agreements, which reads:

(1) Except as provided in paragraph (b)(2), the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client in writing before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated in writing to the client.
(2) The requirement of a writing shall not apply to a single-session legal consultation or where the lawyer reasonably expects the total fee to be charged to the client to be less than $500. Where an indigent representation fee is imposed by a court, no fee agreement has been entered into between the lawyer and client, and a writing is not required.

Rule 6.5, Nonprofit and Court-Annexed Limited Legal Services Programs, has been replaced in its entirety. You can read the new rule, effective January 1, at Rule 6.5.