Monday, December 31, 2012

Emancipation Proclamation 150th Anniversary Celebrated


Abraham Lincoln signed the Emancipation Proclamation on January 1, 1863 as a precursor to the abolishment of slavery upon the ratification of the 13th Amendment of the U.S. Constitution.
The first Watch Night services were held on New Year’s Eve, 1862, in anticipation of the date when slaves were proclaimed free in states in rebellion against the United States. This year, the anniversary of the Proclamation will be celebrated by the National Archives with viewings of the original Proclamation, musical performances, a dramatic reading and panel discussions.
In Massachusetts, the anniversary will be marked in Springfield and Amherst.


Sunday, December 30, 2012

Massachusetts Rules of Civil Procedure Change Effective January 1


Rule 5(a), Rule 54(c) and Rule 55(b)(2) have new language as the result of a ruling in a case that prompted the Supreme Judicial Court make changes in the Rules.

 Rule 5(a) “Service: When Required”, Rule 54(c) “Demand for Judgment” and Rule 55(b)(2) “Judgment. By the Court.” were changed as a result of the S.J.C.’s ruling in Hermanson v. Szafarowicz, 457 Mass. 39 (2010). Reporter’s Notes to Rule 55(b)(2)  explain the change, which is effective January 1, 2013.

The Hermanson case dealt with G.L. c. 231, § 13B, which prohibits a demand for a specific monetary amount in a complaint, and the first sentence of Mass. R. Civ. P. 54(c), which provides that a default judgment may not exceed the amount requested in the demand for judgment. The S.J.C. requested the Standing Advisory Committee on the Rules of Civil and Appellate Procedure to review the conflict between the statute and the rule, and suggest a resolution. The Court adopted the Standing Advisory Committee’s recommendation to require the party seeking a default judgment to provide advance notice to the defendant of the nature and type of damages sought, but to not name a sum certain.

Friday, December 28, 2012

Temp Workers Right To Know

Massachusetts’ new law requiring staffing agencies to provide temporary workers with more information regarding their employment will go into effect on January 31, 2013.


Child Care Providers Face New Crib Standards

The U.S. Consumer Product Safety Commission reminds child care providers that effective December 28, 2012, the cribs that child care facilities, family child care homes, and places of public accommodation affecting commerce, provide for use must comply with current CPSC crib standards. 

Thursday, December 27, 2012

Massachusetts:Top Ranked Knowledge Economy Leader.

Massachusetts and Delaware stand out as the top performers in the ‘New Economy’ among US states according to L'atelier.  They, and the other leading Knowledge Economy states, boast several major universities and business-friendly corporation law, and invest heavily in R&D and innovation.
Massachusetts, the top-ranked state, “boasts a concentration of software, hardware, and biotech firms supported by world-class universities such as MIT and Harvard.” Second-place Delaware is perhaps the “most globalised of states,” with business-friendly corporation law that attracts both domestic and foreign companies.

Purchasing wine online in Massachusetts

The gift of a special wine is a holiday tradition, but in Massachusetts, purchasing wine online is difficult at best. Currently, only wineries that are licensed by the Alcoholic Beverages Control Commission can sell and ship wine directly to residents, G.L. Ch. 138, c.19F.  Most small vineyards in other states do not go to the trouble of getting this license. Since 2008, wine enthusiasts and vendors have been trying to change this law.
The most recent bill, HB1029, allowing for out-of-state wineries licensed by their own states to sell in Massachusetts, failed to make it to a vote in the 2012 legislative session. The Wellesley Wine Press provides this interesting summary of this ongoing issue.

Thursday, December 20, 2012

Confused about fees to appeal a speeding ticket?

The $25 fee to challenge a speeding ticket issued by an officer is clear enough.  The motorist can request a noncriminal hearing on the back of the citation and mail the citation, together with a $25 filing fee, to the registry of motor vehicles at the address indicated within 20 days.  See Mass GL c 90C, § 3[A][4], first sentence.  But the fee to appeal a finding of "responsible" at a magistrate's hearing is not so clear.  The Uniform Rules of Civil Motor Vehicle Infractions states at Rule (b)(3), "There shall be no filing fee for such appeal."  But the District Court's "Frequently Asked Questions" page, at #14, states, "You must pay a non-refundable $20 appeal fee to the clerk-magistrate's office before your appeal to a judge is heard."  Moreover, Mass GL c 90C, § 3[A][4], paragraph 4, states, "Any violator so appealing the decision of a magistrate shall be responsible for paying a fee of $50 prior to the scheduling of the appeal hearing before a justice."  The $50 filing fee is also referenced on the District Court's Filing Fees web page.

Minor Changes Announced to SJC Rule 3:12

The Code of Responsibility for Clerks of the Courts has been amended slightly effective January 1, 2013.
In Canon 1,  "Judicial Case Manager or Assistant Judicial Case Manager" has been added to the definition of "Clerk Magistrate," and in Canon 2, the following sentence was added: "A Clerk Magistrate shall also comply with the lawful directives of the Court Administrator."

EVERY DOG HAS ITS DAY....BUT IN THE UNITED STATES SUPREME COURT?

On October 31st the U.S. Supreme Court heard oral arguments in two cases that involved the use of drug detection dogs and fourth amendment rights (Florida v. Jardines, Docket No. 11-564, and, Florida v. Harris, Docket No. 11-817). Transcripts and audios are available from the United States Supreme Court website  http://www.supremecourt.gov/opinions

Information concerning these cases and an informative discussion of the issues can be found on the SCOTUSblog at http://www.scotusblog.com/case-files/cases/florida-v-harris/

This was not the first time the court has been asked for guidance on this issue, and courts in many jurisdictions and at all levels have dealt with similar cases. In fact, there exists a great body of case law, annotations, and journal articles on the subject. An early case from the Tenth Circuit , U.S. v. Garcia, 42 F.3d 604 (10th Cir. 1994), was reported in ALR Federal along with the following annotation: Brian L. Porto, J.D., "Use of Trained Dog to Detect Narcotics or Drugs as Unreasonable Search in Violation of Fourth Amendment, 158 ALR Federal 399 (1998).

The reliability of the dog is sometimes a question in such cases. For a great discussion of this issue see: Monica Fazekas, Comment, Pawing Their Way to the Supreme Court: The Evidence Required to Prove a Narcotic Detection Dog’s Reliability, 32 N. ILL. L. Rev 473 (2012). A recent Massachusetts Superior Court ruling on a motion to suppress evidence in the matter of Commonwealth v. Edgar Santiago, 30 Mass L. Reprt. 81 (2012) provides a close examination of the issue and cites cases and journal articles in its discussion.

More information on the topic is available at our Law About Drug Detection Dogs.

Monday, December 17, 2012

New Requirements for Indictment of Juvenile for Murder

In Comm. v. Walczak, decided December 12, the SJC held that "In future cases, where the Commonwealth seeks to indict a juvenile for murder and where there is substantial evidence of mitigating circumstances or defenses (other than lack of criminal responsibility) presented to the grand jury, the prosecutor shall instruct the grand jury on the elements of murder and on the significance of the mitigating circumstances and defenses. The instructions are to be transcribed as part of the transcription of the grand jury proceedings." While a majority of the court agreed on the result, their reasoning varied. The decision includes two concurring opinions and one concurring in part and dissenting in part.

Child Support Enforcement's website redesigned

The Child Support Enforcement (CSE) unit of the Dept. of Revenue has redesigned its website with a description of the changes. There are 4 languages represented on the website (Spanish, Portuguese, Vietnamese and Cape Verdean).

Put it in writing!

Effective 1/1/2013, most representation and fee agreements must be in writing according to amended Mass. R. Prof. C. 1.5(b). New comment 2 to the rule explains that “a simple memorandum or copy of the lawyer’s customary fee schedule is sufficient if the scope of the representation and the basis or rate of the fee is set forth.” Exceptions to Rule 1.5 include a single-session legal consultation in which the client is charged less than $500 or when the attorney is appointed by the court to represent an indigent party. Also exempted are Limited Assistance Representation attorneys as defined in Rule 6.5.

Premarital agreement law in Massachusetts

A forthcoming research paper entitled Drafting Prenuptial Agreements will contain a chapter on premarital agreement law in Massachusetts  authored by Suffolk University School of Law Professor Charles Kindregan.  The chapter reviews court decisions regarding the unconscionability standard,  two peeks policy and enforceability, and waivers.

Wednesday, December 12, 2012

Virtual schools expand in 2013

According to Boston.com this past week, the Massachusetts Senate gave a second chance to digital learning in Massachusetts, passing a bill that expands the presence of virtual schools statewide, so that by 2020 the Board of Education could license up to 10 such schools.
The bill, which originated in and was passed by the House as H4274, gives emphasis and preference to those schools that will serve students with distinct medical issues, that have dropped out, travel for the arts or sports, fear bullying, and are high-performing students.
Visit the Commonwealth of Massachusetts Department of Education for more information including Innovation School Regulations.

Tuesday, December 11, 2012

Lawrence Law Library Open House

Please come to our holiday celebration on Dec. 20th starting at 9am. Refreshments will be served.

Monday, December 10, 2012

New law replaces CHINS statute


Effective November 5, 2012, a newly enacted Massachusetts law, Chapter 240 of the Acts of 2012, entitled, "An Act Regarding Families and Children Engaged in Services "(FACES), replaced the prior "Children in Need of Services" (CHINS) statute. The new law may also be referred to as, "Child Requiring Assistance" (CRA).

The new law will be phased in over a four year period with the first year seeing the implementation of a database that will list resources available for children and families in their own communities. The law changes the former practice of bringing a child in shackles to appear before a court. Now, whenever a child is brought to court or appears in court in response to a notice or summons, the child may not be confined in shackles or similar restraints or court lock-up.

Announcements and information concerning CRA are available from a number of sources. The Governor’s Office recently issued a press release outlining changes that will be implemented under the new law. The Children’s Law Center of Massachusetts has announced the new law on its website and plans to supplement the announcement by adding materials to its website over time. The Massachusetts Bar Association Juvenile and Child Welfare Section has sponsored a free on-line "legal Chat" presentation concerning the law. The hour-long session is free for MBA and non-MBA members, although registration is required. Information is available on the MBA website.

In addition to the above, the Massachusetts Trial Court Juvenile Court Administrative Office has made available a "Handbook for Parents, Legal Guardians, and Custodians in Child Requiring Assistance Cases".

Thursday, December 06, 2012

New Corporate Entity: Benefit Corporations


Massachusetts companies now have a new way to demonstrate their commitment to social responsibility.
As reported by masslive.com  a law signed by Democratic Massachusetts Gov. Deval Patrick in August allows for the creation of a new type of corporate entity:  a benefit corporation. Corporations voluntarily apply for the designation and are then required to consider the public good – factors such as environmental sustainability and community benefit – in their corporate decisions.

 MGL c.156E (as added by St.2012, c.238, s.52) went into effect Dec. 1, and by Monday afternoon seven corporations had already registered, according to the Secretary of State’s office. At least three more companies have said they expect to register in the coming months.  Massachusetts was the 11th state to allow benefit corporations. 

For more information, see our Mass. Law About Corporations: Benefit Corporations.

National Archives ordered to release Watergate break-in case records

On November 2, 2012 the District Court for the District of Columbia directed the National Archives to release records sealed in the United States v. Liddy case within 30 days.  The sealed documents are approximately 950 pages and include evidentiary discussions held outside the jury's hearing, pretrial discussions between the defendants' attorneys and the Court, and post-trial sentencing information. 

Wednesday, December 05, 2012

Law enforcement seeks greater access to text messages

 FOX 25 News reports that law enforcement is looking to expand access to text messages in criminal investigations.
Organizations representing both police and prosecutors across the United States are lobbying Congress to change current federal privacy laws. 
At present, law enforcement officials do not need a warrant to access cell phone records and the law permits voluntary disclosure of customer communication records.  The number of days providers currently keep text messages varies, with some carriers keeping them as long as 12 days. 
This week the SJC gave the police unfettered access to cell phone call lists. Looking at text messages and emails was not addressed in Com. v. Berry and Com v. Phifer. Read more on this topic at our web page Massachusetts Law About Internet and Online Privacy.

Tuesday, December 04, 2012

Hon. Michael S. Dukakis featured speaker Dec. 11th

The Third Annual Honorable Daniel F. Toomey Memorial Lecture Series presents the Hon. Michael S. Dukakis, former Governor of Massachusetts on Tuesday, December 11, 2012. The lecture will be held at the Worcester Trial Court Complex Jury Room, Third Floor from 4:00 to 5:30. This event is free and open to the public. No registration is necessary. Refreshments will be served following the Lecture.

Maine Gay marriage law takes effect Dec. 29, 2012

According to WMTW News 8  Maine's new same-sex marriage law is going into effect on Dec. 29.  Governor Paul LePage signed off on the certified election results on Nov. 29 and it goes into effect 30 days from that date.  Many cities and towns are considering special hours because the date falls on a Saturday and the following Monday will be a holiday.  Related information can be found at Massachusetts Law About Same Sex Marriage along with material for residents of other states.

Monday, December 03, 2012

Changing How the State Fills an Empty Senate Seat

Wicked Local reports that two prominent Democrats, Gov. Deval Patrick and Phil Johnston, former chairman of the Massachusetts Democratic Party, both said they are in favor of changing, for the third time in just nine years, the current law that dictates the procedure for filling the U.S. Senate seat of Sen. John Kerry should he become the next Secretary of State or Defense.
Visit our page on Massachusetts Law About Elections for more about the Governor's authority to appoint an interim Senator.