Rape, Intoxication and Consent

In two cases decided last Friday, the Supreme Judicial Court clarified requirements for proof in rape cases in which lack of consent due to intoxication is an issue.

In Comm. v. Blache, the court ruled that jury instructions should clearly explain the following two requirements:

1. that the intoxication rendered the complainant incapable of consent. Jury instructions must make clear that "for the Commonwealth to meet its burden of proof on the complainant's nonconsent by establishing that she was incapable of consenting, the Commonwealth must show not simply that she lacked sobriety or was intoxicated, but that as a result of the alcohol and drugs she consumed, the complainant's physical or mental condition was so impaired that she could not consent."
2. that the defendant "knew or reasonably should have known that the complainant's condition rendered her incapable of consenting." This second element is a new requirement, and the court ruled that "we will not give the new rule retroactive effect, but apply it solely to trials occurring after the issuance of the rescript in this case."

In Comm. v. Urban the court held that "The instruction in this case, like the instruction in Blache, failed to clarify that an extreme degree of intoxication is required before the incapacity rule will apply...The risk is too great that they may have interpreted it to mean that a finding of intoxication of any degree, like a finding of unconsciousness, for example, vitiates consent as a matter of law."

More information and links to laws and other cases can be found at Mass. Law About Rape and Sexual Assault.

W-2 Problems

We've been receiving questions this week on the provision of W-2 forms by employers.

According to the IRS, employers must send W-2 forms to their employees by January 31.

If you do not receive the form by February 15, or if the form you received is incorrect and the employer will not correct it, the IRS advises: "contact the IRS at (800) 829-1040. An IRS representative can initiate a Form W-2 (PDF) complaint. Form 4598, Form W-2 or 1099 Not Received or Incorrect, will be sent to the employer and a copy will be sent to you along with Form 4852 (PDF), Substitute for Form W-2, Wage and Tax Statement, or Form 1099-R, Distributions from Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc. The copy that the employer receives will advise him or her of the employer's responsibilities to provide a correct Form W-2 (PDF) and of the penalties for failure to do so. "

CORI Reform

Last month, Governor Deval Patrick introduced legislation, H4476, designed to limit the use of Criminal Offender Record Information (CORI) in certain circumstances. Under current law, a person can request their criminal record be sealed after fifteen years for a felony conviction or ten years for misdemeanors. The new law would prohibit sealing of sex offenses, but would allow sealing of a felony record after ten years, and a misdemeanor after five. "To further improve employment prospects, the bill directs the CHSB not to provide CORI-certified employers access to records that are eligible for sealing under the new timelines" but criminal justice agencies would continue to be given full access to sealed records.

In his press release, “CORI was never intended to turn every offense into a life sentence,” said Governor Patrick. “All but a handful of people incarcerated are eventually released, and they need to get back to work. These reforms require decision-makers to make an individual determination about whether an applicant is rehabilitated, rather than excluding ex-offenders categorically. If we want to reduce crime and help people re-integrate successfully, this is a smarter approach.”

The Massachusetts Bar Association supports the proposal, which has been referred to the Joint Committee on the Judiciary.

Much more information on CORI is available at our Mass. Law About Criminal Records.

Proposals to Decriminalize Marijuana

There is some movement in Massachusetts toward decriminalization of possession of small amounts of marijuana. In 2007, a ballot initiative proposed by the Committee for Sensible Marijuana Policy collected 80,372 signatures, considerably more than the 66,593 required to submit the measure to the legislature for debate. The legislature now has until early May to act on the measure. If they fail to do so, "another 11,099 voter signatures must be gathered by June 18 for the proposal to make the November ballot," according to the Boston Herald. The initiative provides that a person in possession of less than one ounce of marijuana would be subject to "civil penalty of one hundred dollars and forfeiture of the marihuana, but not to any other form of criminal or civil punishment or disqualification."

There are also two bills pending in the legislature, S1121 and S1011, which propose fines, rather than jail time, for possession of less than an ounce of marijuana.



According to the Massachusetts Cannabis Reform Coalition, "on Tuesday, March 4th, on or after 1 pm (Room TBA), the Judiciary Committee will be taking testimony on both the State Initiative and our Decrim Legislation."

SJC Invites Comments on Rule

Last February, the Supreme Judicial Court's Standing Advisory Committee on the Rules of Professional Conduct issued proposed changes to Professional Conduct Rule 1.14, Client with Diminished Capacity. After receiving a number of helpful comments, the committee revised the proposal. "The Committee has also proposed revising the comments to Rule 1.14 to incorporate several comments from the ABA model comments and to address issues raised in Care and Protection of Georgette, 439 Mass. 28 (2003)." They are now opening the revised proposed rule for comment.

You can find the notice "including the proposed revised rule and comments and dissenting statement, and redlined copies of the Committee's proposed revisions to Rule 1.14 indicating how the Committee's proposal differs from American Bar Association Model Rule 1.14 and from current Massachusetts Rule 1.14" at Notice Inviting Comment: Proposed Revisions to Massachusetts Rule of Professional Conduct 1.14.

SJC to Revisit Issue of Comments by Judges

On Monday, the Supreme Judicial Court announced the establishment of an Ad Hoc Committee to study the issue of public comments by judges. The committee will study SJC Rule 3:09, section 3B(9), which reads:

(9) Except as otherwise provided in this section, a judge shall abstain from public comment about a pending or impending Massachusetts proceeding in any court, and shall require* similar abstention on the part of court personnel*.
(a) A judge is permitted to make public statements in the course of his or her official duties or to explain for public information the procedures of the court, general legal principles, or what may be learned from the public record in a case.
(b) This Section does not prohibit judges from discussing, in legal education programs and materials, cases and issues pending in appellate courts. This education exemption does not apply, however, to comments or discussions that might interfere with a fair hearing of the case.
(c) This Section does not apply to proceedings in which the judge is a litigant in a personal capacity.

According to Mass. Lawyers' Weekly, "The appointment of the 11-member panel comes two months after Superior Court Judge Kathe M. Tuttman came under withering criticism for her decision last summer to release on personal recognizance a man convicted of having killed his mother and now charged with the November murder of a newlywed couple in Washington. "

Bill to Protect Child Survivors of Parental Homicide

The Joint Committee on the Judiciary heard testimony January 24 on a bill (H1547) that would make it easier to end the involvement in a child's life of a parent who killed the second parent. The bill provides that a conviction for murder would "create a rebuttable presumption that contact with the child and exercise of parental rights, including but not limited to care and custody of the child, by the convicted parent are not in the child’s best interests."

According to the Daily News Tribune, the committee heard from Patrick Holland, who was eight years old when his father killed his mother. His father wanted to see Patrick's school reports and otherwise stay involved in the boy's life from prison, and it took Patrick four years in court to terminate contact with him. Patrick asked legislators to ease the process for other children in his situation. According to the article,"'Kids in my situation have already been through a loss. They don’t need to go through more hardships,' Holland said. 'This law would create options and allow them to do what they want, where I was never able to.'"

Governor's Budget

Governor Deval Patrick submitted his budget recommendations on Wednesday, and we want to commend him for the ease of access provided on the web. Finding a given line item or outside section of the budget had always been a nightmare. Now, the site is intuitive, easy to use, and thorough in its coverage. For each broad category or line item, you can easily see the FY2009 recommendation, and then with one click view Historical Budgets from FY2005 to date, or Historical Spending, or Employment Levels. Outstanding!

House Passes Limits on Cell Phones While Driving

Yesterday, the House passed H4477, AN ACT FURTHER REGULATING THE USE OF CERTAIN COMMUNICATION DEVICES WHILE OPERATING A MOTOR VEHICLE. While the bill has received a great deal of attention because it specifically bans text messaging while driving, it actually bans all use of hand-held cellphones and other electronic devices.

Drivers over 18 may use cellphones with hands-free capability. "A violation of this section shall be punishable by a fine of $100 for a first offense, by a fine of $250 for a second offense and by a fine of $500 for a third or subsequent offense."

Drivers under 18 may not use cellphones at all, even with hands-free headsets. In addition to the fines above, a junior operator who violates the law will have their license or permit suspended for 60 days for a first offense, 180 days for a second offense, and a full year for a third offense.

Exceptions are provided for calls to emergency services. According to the Boston Globe, "an amendment approved yesterday stipulates that drivers can use their hands to dial and hang up the phone without a violation, as long as they use an earpiece or speakerphone during their calls."

The Senate has yet to vote on the measure. The Globe reports, "knowledgeable Senate source said Senate President Therese Murray is not likely to bring the measure up for a vote in the near term."

Energy saving lamps and mercury

We have all been encouraged to use Energy Star lights, such as the compact fluorescents bulbs. These can consume 75% less energy than a comparable incandescent light. They last longer, and use less energy. What have we got to lose? The problem is that these lights are made with mercury, and we can't throw them in our regular trash or traditional recycling programs. In 2006, the state passed a law that would mandate consumer friendly recycling by manufacturers, and an education program for the public. It states in part : "No person, household, business, school, healthcare facility or state or municipal government shall knowingly dispose of a mercury-added product in any manner other than by recycling, disposing as hazardous waste or using a method approved by the department."(sec. 6I)
The Dept. of Environmental Protection has an information page on mercury, and has posted the final regulations for recycling mercury-added products. At this time, recycling options are limited, but the regulations kick into gear starting in March.
Now we can save energy and not adversely impact the environment.

Elder Care Directory

The Family Caregiver Handbook: Finding Elder Care Resources in Massachusetts is a publication/website produced by the MIT Workplace Center which acts as a "'gateway' to key elder care organizations across the Commonwealth, providing telephone numbers, locations and website addresses so that caregivers can find the most appropriate resources closest to their own community." Topic areas include housing, health care, insurance, financial, transportation, recreation and more. While the substantive information provided is brief, the strength of this source is the referral information it provides. For example, just one subsection under "Caregiver Support," includes the following categories:

• Finding Resources and Programs for Caregivers in Massachusetts
• Massachusetts Family Caregiver Support Program
• What Do They Provide?
• Who Is Eligible?
• How Is the Program Organized?
• Caregiver Support Programs through Ethnic and Faith-based Organizations
• Caregiver Support Programs through Organizations Linked to Specific Diseases

You'll find links to this and many other publications at our Massachusetts Law About Elders' Issues.

Notice to Clients of Insurance Company Payments

Last month, the Division of Insurance issued DOI Bulletin 2007-15: Written Notice to Claimants of Payment of Claims in Third Party Settlements. Insurance companies are now directed to notify clients when payment of a settlement of $5000 or more has been made to the client’s attorney. Surprisingly, no notice to the claimant had been required in the past. Notice must include:

• The amount of the check and the party to whom the check was mailed; and
• The address of the party to whom the check was mailed; and
• If payment is made by a draft or check, a copy of such draft or check; or
• If payment is made by the electronic transfer of funds, the amount of such transfer, the date of such transfer and the party to whom the transfer was made; and
• The statement, “If you have any questions about this notice, please contact your attorney.”

According to the Boston Globe, the new rule comes as a result of a very public case of malfeasance in which a Massachusetts attorney kept insurance settlement checks without notifying his clients that they had been received.

Religious Accommodation in Employment

"An employer's mere contention that it could not reasonably accommodate an employee is insufficient," according to the Supreme Judicial Court in MBTA v. MCAD, decided Friday. A person granted a conditional offer of employment had religious beliefs which prohibited him from working Friday evenings, and the MBTA then rescinded the offer, stating that to accommodate him would pose an undue hardship. The MBTA did not explore the options available, including voluntary employee shift swapping. "In the absence of evidence demonstrating a contractual bar to voluntary employee swaps, or other interference with employer operations, requiring an employer to facilitate such swaps as a means of accommodating the religious observances of its employees will not be considered undue hardship."

The court did not require "an investigative or interactive process" in all cases, however. An "employer is not required to engage in fruitless dialogue if it is absolutely clear no accommodation could be made without undue hardship. Such a demonstration, however, will often be difficult to make without the employer's having engaged in an interactive process with the employee and having made a good faith effort to explore the options that come out of such a process. The MBTA has amply demonstrated this point in the case before us."

Announcing RetrieveLaw!

Our library card holders can now access Massachusetts and Federal primary law from home via RetrieveLaw. The database includes:

• Mass. SJC and Appeals Court cases
• Mass. General Laws
• CMR
• Mass. court rules
• Federal court cases
• US Code
• CFR
• Federal court rules

We realize it has been a long wait for a new database, and thank you for your patience. As always, we welcome your questions and feedback. And, of course, we welcome new cardholders (it's free and easy)! See How to Get a Library Card for more information.

New Laws for 2008

Effective today:

• The minimum wage is now $8.00!
• Stores must start selling fire-safe cigarettes (but they can deplete their existing inventories first)
• Monthly penalties begin to accrue every month for failure to have health insurance
• Adoptees born from today forward may have access to their original birth certificates at age 18 (their adoptive parents may have access before they turn 18)

Happy new year!

Pothole Time!

The Boston Herald reports that "potholes, ordinarily the bane of Bay State drivers in the spring, are ripping up roads early this year." According to the Executive Office of Public Safety, pothole damage should be reported to "the DPW or highway department of the community where it happened. For state roads and highways, please contact MassHighway at 617-973-7500 or the MassTurnpike at 617-248-2800." To help you provide proper notice to your municipality, we've created a new webpage on potholes that provides links to the law, cases, and some sample notice of claim forms.

Jury Duty Made Easy

Massachusetts residents summoned for jury duty can now reply online. "This website will help you respond to your summons for juror service, and will also allow you to make changes or request assistance. It will help you determine if you are qualified to serve as a juror. You can:

• Confirm your service
• Request a disqualification
• Postpone your service
• Request a hardship transfer
• Update your contact information
• Find courthouse information
• Complete and print your Confidential Juror Questionnaire"

The Office of the Jury Commissioner has a great deal of additional information on their site including questions and answers for jurors, such as what to do if you are disabled, what to do in case of bad weather, how payment works and much more. A great resource.

Dwyer Forms

The SJC has released six new forms "for use in all criminal cases in which a defendant seeks pretrial inspection of records of third parties that may be statutorily privileged" pursuant to Commonwealth v. Dwyer, 448 Mass. 122 (2006).
These forms supersede and replace the forms originally included in the Dwyer order:

• Notice of a Hearing Regarding the Release of Records
• Notice Accompanying Court-Ordered Summons for Non-Privileged Records
• Notice Accompanying Court-Ordered Summons for Presumptively Privileged Records
• Protective Order for Defense Counsel
• Order Allowing Access to Privileged Records by Persons Other Than Counsel
• Protective Order for Prosecuting Attorney

You can find these forms and others at Criminal Procedure Forms on our site.

Adoptees' Birth Certificates

Beginning tomorrow, certain adoptees and their parents can request a copy of their original birth certificates under St.2007, c.109 . You can get a copy of your original birth certificate only if you are an "adopted person 18 years of age or older who was born in the commonwealth on or before July 17, 1974 or on or after January 1, 2008 or ... an adoptive parent of an adopted person under 18 years of age and born in the commonwealth on or after January 1, 2008." We've updated our Law About Adoption page to include a link to great information from the Registry of Vital Records about how to proceed and what to expect. We also have a link to the required form under Adoption Forms.

Spanking and the Law

Much has been written recently about a proposed law which would outlaw spanking in Massachusetts. That got us interested in what the current status of the law was. For an excellent discussion of the legal limits on physical discipline, see Comm. v. Rubeck, 64 Mass. App. Ct. 396 (2005). This case says, in part, "The Legislature has not chosen to recognize or approve a parental right to use force in disciplining a child, and we know of no case in Massachusetts that specifically recognizes such a right, although there are allusions to this parental right in our cases." It continues, "in Commonwealth v. O'Connor, 407 Mass. 663, 667 (1990), the court discussed such a right, noting, however, that, as of that time, "[n]o Massachusetts decision or statute grants parents or others a right to use reasonable force in disciplining a child."

However, it also says, "Instruction 3.15 of the Massachusetts Superior Court Criminal Practice Jury Instructions (1st Supp. 2003) proposes a jury instruction stating that "[a] parent, or one acting in the position of a parent and who has assumed the responsibilities of a parent, may use reasonable force to discipline (his/her) minor child."

Laws and regulations specifically prohibiting corporal punishment in Massachusetts include:

• G. L. c. 71, § 37G: Public Schools
• 606 CMR 7.05 (8) Day Care
• 105 Code Mass. Regs. § 430.191: Recreational Camps

Federal Cases on the Web

A very exciting announcement from Public.Resource.Org and Fastcase, Inc.! In yesterday's press release, they announced that "they will release a large and free archive of federal case law, including all Courts of Appeals decisions from 1950 to the present and all Supreme Court decisions since 1754. The archive will be public domain and usable by anyone for any purpose." Public access to public documents--wow! For everyone who ever wondered exactly what was covered by West's copyright in their reporters, you may be interested in Public Resource's letter to West, and West's reply.

Electrical Code changes

The Board of Fire Prevention Regulations has released the 2008 Massachusetts Electrical Code. The code is actually the 2008 National Electrical Code, modified with certain provisions. These new provisions are found in 527 CMR 12, and are linked from our CMR page.

Abortion Clinic Buffer Zone

Gov. Patrick this week signed SB1353, An Act Relative to Public Safety, which expands the buffer zone around abortion clinics to 35 feet. The new law, which amends MGL c.266, s.120E1/2, says in part, "No person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of thirty-five feet of any portion of an entrance to, exit from, or driveway of a reproductive health care facility, or within the area within a rectangle created by extending the outside boundaries of any entrance to, exit from, or driveway of, a reproductive health care facility in straight lines to the point where such lines intersect the sideline of the street in front of such entrance, exit or driveway."



According to the Boston Globe, Operation Rescue plans to challenge the law, but the Supreme Judicial Court, in response to a question from the Senate in 2000 (Opinion of the Justices to the Senate, 430 Mass. 1205 (2000)), indicated that a proposed 25-foot buffer zone would be constitutional. That opinion stated that floating buffer zones, as Massachusetts law previously provided are "problematic" and make compliance difficult. With a clearly defined boundary, "demonstrators may still engage in all forms of protest as they previously have done, but are simply constrained to do so outside the buffer zone."



More information on abortion in Massachusetts is available at Mass. Law About Abortion.

Child Support After Parent's Death

A recent Boston Globe article, Clash over estate spurs mother's challenge to law, highlights a legal battle in Rhode Island over whether a parent can disinherit minor children when the estate has sufficient funds to provide support for them, ending support, or whether, instead, child support should be treated like an outstanding obligation of the estate like other debts. In Massachusetts, the issue was resolved in L.W.K. v. E.R.C., 432 Mass. 438 (2000). In LWK, the court held that a child support obligation survives death. In part, the majority held:

1. "A legally enforceable obligation to pay child support, like other financial obligations of the testator, takes precedence over testamentary dispositions and must be satisfied prior to any distribution of assets under the will."
2. "A parent charged with an obligation to support his child cannot nullify that legal obligation by disinheriting his child pursuant to G. L. c. 191, Sect. 20. Beyond satisfaction of his support obligation, however, a parent is free to exercise his testamentary discretion with respect to a minor child, as all others, and may disinherit her."
3. "A judge in the Probate and Family Court does not have the authority to enter an order after the death of the obligor to secure postminority educational support for a child who does not presently qualify for such support pursuant to G. L. c. 209C, Sect. 9."

On Shushing

I'd like to think I would never shush someone in a library. The stereotypical image of glasses, a bun, sensible shoes, and an attitude of condescension sends me reeling, and makes me want to crank up the music and order food and drink for everyone. So it is so frustrating to have to do the electronic version of a "shush" here and turn off comments on the blog. We have become so innundated with spam comments that no real comments can be heard, and as a government agency we really can't allow people to scream "cheap Viagra" in person or online, I guess.

A library, real or virtual, should be a place for freedom of expression. We want your input, and we want you to be comfortable, online and in our libraries. The bottom of every page of this site links to our reference librarians as well as to the webperson. So please, keep your comments and concerns coming through email, and my sincerest apologies for cutting off the dialog that comments create.

Sentence Deferred 16 Years Not To Be Resumed

In the case of Commonwealth v. Ly, the Supreme Judicial Court ruled today that a convicted rapist may not be compelled to complete his sentence after a delay of 16 years by the state. Vith Ly was granted a stay of execution pending appeal in 1990. In 1991, one of his convictions was affirmed, but he was never ordered to serve his sentence. The court says "a defendant who unsuccessfully appeals from a criminal conviction bears no burden to come forward voluntarily to be taken into custody and incarcerated." The Commonwealth failed to report to the court "the immediate necessity to revoke the stay of execution of the defendant's sentences, " and failed to notice the error in subsequent years despite the arrests of Ly in 1999 and 2001.

According to the court, "it is a basic principle that a defendant sentenced to incarceration has a due process right to serve the sentence promptly and continuously, rather than 'in installments.'"

"We conclude that execution of the defendant's sentences, after an unexplained delay of sixteen years on the part of the Commonwealth to have the sentences executed, would violate due process and principles of fundamental fairness. "

Physician Apologies

At least three bills currently pending in the Massachusetts legislature would provide legal protection to doctors who apologize for errors. S1284 would set up a pilot program through which the apologies of participating physicians "shall not be subject to subpoena or discovery, or introduced into evidence, in any judicial or administrative proceeding." This bill would require "participating hospitals and physicians [to] promptly acknowledge and apologize for mistakes in patient care and promptly offer fair settlements."

Two other bills, S987 and H1370, apply to all health care providers, and provide that "any and all statements, affirmations, gestures, activities or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of concern which are made by a a health care provider, facility or an employee or agent of a health care provider or facility, to the patient, a relative of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence in any judicial or administrative proceeding and shall not constitute an admission of liability or an admission against interest." These bills do not require the offer of a settlement.

The Mass. Medical Society supports the passage of S987/H1370. According to the Boston Globe, "the state's trial lawyers oppose giving any doctor a special exemption." A study done at Washington University reports that "Patients said they wanted to know if there had been an error, how the error happened, and particularly what the doctor and institution would be doing to prevent the error from happening again. And they would like an apology." It is unclear, though, what patients' views might be of legal protection for that apology.

Do Not Call? Do Not Worry

The FTC had intended for phone numbers listed on the national Do Not Call List to be renewed every five years or dropped from the list. Since the Federal Do Not Call Act, 15 USC 6101 note, was enacted in 2003, this would mean that phone numbers would start falling off the registry next year. Legislators have stepped up to make the registration permanent, though, and the FTC has promised that they will not drop any phone numbers from the Do Not Call Registry while bills are pending to make the registry permanent. Read the full text and check the status of the Senate Bill and House Bill. So no need to renew your registration. If your number is on the list, it will remain there. If not, register at the Do Not Call site.

More information on Do Not Call and other telemarketing issues is available at Mass. Law About Telemarketing.

Employee Rights During Investigation

Today's Boston Globe reports that the prosecution of Blackwater employees for shootings in Iraq might be difficult because the guards received immunity before speaking to State Department employees. Federal law provides key protection for government employees facing an internal investigation.

1. Garrity v. New Jersey, 385 US 493 (1967). Under Garrity, a government employee cannot be faced with the choice between self-incrimination and termination. If the employee is coerced to speak under threat of termination, the statements cannot be used against him in a subsequent prosecution. According to an FCC source, employees faced with an investigation should be given a "Garrity Warning," in which "The individual is apprised of his or her right to remain silent if the answers may tend to incriminate him or her; that anything said may be used against him or her in either a criminal or administrative proceeding; and he or she cannot be disciplined for remaining silent. " So, in a Garrity situation, the employer gives up their right to discipline the employee for their silence, but retains the right to prosecute the employee for anything they might say. Thus, Garrity is said to cover "voluntary statements."

2. Kalkines v. United States, 473 F.2d. 1391 (1973). Under Kalkines, a government employer can be required to answer questions, and subject to discipline by the employer for his responses, if the possibility of prosecution has been removed. Apparently, in the Blackwater case, the contractors were given a promise of immunity from prosecution under Kalkines and so were required to answer questions, but now would face only disciplinary, and not criminal, consequences.

It is unclear from reports whether the fact that the individuals involved in the shootings were not government employees, but were employees of a government contractor, would affect their rights under Garrity and Kalkines.

Information on other employment issues in Massachusetts is available at Mass. Law About Employment Termination.

Expert Witness Jury Instruction

In Commonwealth v. Hinds, issued today, the Supreme Judicial Court reversed the conviction of a man convicted of first degree murder because of a faulty jury instruction on the evaluation of expert testimony. In the opinion, the court goes on to question the instruction previously "cited with approval" in Commonwealth v. Rodriguez, 437 Mass. 554 (2002) from Section 4.7.1. of the Massachusetts Superior Court Criminal Practice Jury Instructions (Mass. Continuing Legal Educ. 1999). The SJC then provides this "better instruction":

"There is one more point about witnesses to address: expert witnesses. This term refers to witnesses who have specialized training or experience in a particular field. Generally, in cases that are tried in our courts, both civil and criminal, witnesses may testify only to facts that are within their own personal knowledge--that is, things that they have personally seen or heard or felt. However, in a variety of cases, issues arise that are beyond the experience of lay persons, and in those types of cases, we allow a person with specialized training or experience, called an expert witness, to testify, and to testify not only to facts, but also to opinions, and the reasons for his or her opinions, on issues that are within the witness's field of expertise and are relevant and material to the case.

"Because a particular witness has specialized training and experience in his or her field does not put that witness on a higher level than any other witness, and you are to treat the so-called expert witness just like you would treat any other witness. In other words, as with any other witness, it is completely up to you to decide whether you accept the testimony of an expert witness, including the opinions that the witness gave. It is also entirely up to you to decide whether you accept the facts relied on by the expert and to decide what conclusions, if any, you draw from the expert's testimony. You are free to reject the testimony and opinion of such a witness, in whole or in part, if you determine that the witness's opinion is not based on sufficient education and experience or that the testimony of the witness was motivated by some bias or interest in the case. You must also, as has been explained, keep firmly in mind that you alone decide what the facts are. If you conclude that an expert's opinion is not based on the facts, as you find those facts to be, then you may reject the testimony and opinion of the expert in whole or in part.

"You must remember that expert witnesses do not decide cases; juries do. In the last analysis, an expert witness is like any other witness, in the sense that you alone make the judgment about how much credibility and weight you give to the expert's testimony, and what conclusions you draw from that testimony."

New Mortgage Broker Regulations

Attorney General Martha Coakley has issued new regulations for mortgage brokers, amending 940 CMR 8. According to her site, the regulations prohibit "certain unfair and deceptive advertising practices used by some mortgage lenders and brokers," and "expand the scope of previous home improvement loan regulations to apply to all mortgage loans and to prohibit a number of practices used in recent years by some lenders and brokers, which have contributed to the current foreclosure crisis." The amendments "shall be effective on November 15, 2007, except that the provisions of Section 8.05 (requiring new disclosure forms) shall be effective on January 2, 2008. " These and all other Massachusetts regulations available on the web are linked from our Code of Mass. Regulations pages.

Pit Bull Won't Justify No-Knock Warrant

In Commonwealth v. Santiago, the Massachusetts Appeals Court ruled yesterday that the mere presence of a pit bull is insufficient to justify a no-knock entry. The court said, in part, "While we agree with the Commonwealth that a pit bull (or a mutt) may, under the appropriate circumstances, pose a serious enough threat to an officer's safety to justify a no-knock warrant, no such circumstances were present here. There was no information in the affidavit that the defendant might actually use the pit bull as a weapon."

Elections tomorrow, 5th US Congressional seat

Tuesday, October 16th is election day for the 5th Congressional seat, formerly held by Marty Meehan. The 5th district is rather large, comprised of 25 cities and towns. There are 5 candidates in this election: Niki Tsongas, Jim Ogonowski, Kurt Hayes, Patrick Murphy and Kevin Thompson. To find where to vote, go to the Elections Division of the Secretary of State : http://www.wheredoivotema.com/bal/myelectioninfo.php.
The Presidential primary will be held on March 4th in Massachusetts. Interested in running? See if you are qualified.
We also have a page on Elections, to help with your legal research.

Grandparent visitation examined

In a new decision from the Appeals Court, a maternal grandmother's petition for visitation rights over the objection of the father, was remanded to Probate and Family court, rejecting a motion to dismiss by the father. The grandmothers pleadings were deemed sufficient to show visitation may be necessary to protect the child from significant harm. The case, Sher v. Desmond, 70 Mass. App. Ct. 270 is unusual in that the grandmother had never had contact with the child. The circumstances of the mother's disappearance, and her likely abuse by the father were deemed sufficient in the pleadings to reject a dismissal. The mother is missing to this day, her case unsolved.
See our page on Grandparents' Visitation, and Domestic Violence.

Privacy in the news today

A quick reading of today's news reveals several stories relating to privacy and/or electronic information. Release of deceased Boston firefighters autopsy results are being contested in court, showing alcohol and cocaine use. (Globe, Herald) A superior court judge ruled that Channel 7 was barred from reporting the findings.
Then we read that private data, including social security numbers, was released for 450,000 licensed professionals by the state licensing board. (Globe)
Visa is concerned that retailers are not meeting data security standards. (Globe)
And finally, the federal Homeland Security Department's email bulletin apparently sent a flood of over 2.2 million unrelated email messages nationwide. (Globe)
We get many questions about privacy, and have created several topical pages to help.
Medical Privacy, Identity Theft, Internet and Online Privacy, and Employee Privacy are pages that might help you make sense of all the issues.

Jury Duty

The SJC yesterday issued an opinion about background checks for jurors. During jury deliberations for a murder trial, the District Attorney ran background checks on the jurors, and discovered that 5 have criminal histories that they did not disclose in the questionnaire. Although at that point, the jury had returned verdicts on some of the charges, they were hung on the rest. The judge declared a mistrial, and in this decision, the SJC upheld the findings and declared that "double jeopardy does not bar retrial." The Boston Globe has more on the story.
The original trial led to a revision of the jury questionnaire.
Jury duty can be difficult, and often inconvenient, but an essential element in our society of laws. The Postal Service recently released a new Jury Duty Stamp. The artist hails from Merrimac, according to the Boston Herald.
Check out the Jury System page, and if called to serve, "serve with pride."

Ticket Scalping Law Violated

Quincy District Court Judge Mark S. Coven ruled Monday that Admit One Ticket Agency (doing business as RedSoxTix.com) violated the state's anti-scalping law by offering an $85 Red Sox ticket for sale for $500. According to the Boston Globe, "Coven ...ruled Admit One violated the "language and legislative intent of the existing law" by recouping the cost of acquiring the tickets it was reselling and by charging customers a membership fee equal to 15 percent of the sale price. The judge said Admit One paid $225 for the $85 Red Sox-Yankees tickets it was selling and illegally tried to recoup that cost in its $500 resale price. Coven said Admit One's 15 percent membership fee was illusory."

This may spur the legislature to action on pending bills that would amend, or even eliminate the state's anti-scalping law. According to TicketNews.com, Massachusetts is one of six states with such laws (the others: Arkansas, Rhode Island, Kentucky, North Carolina and Michigan). More information on ticket scalping is available at Mass. Law About Ticket Scalping.

Mandatory Drivers' Ed for Parents

Beginning September 1, the parent or guardian of a teenager seeking a driver's license now must take a 2-hour drivers' education course along with their teen. According to the Registry of Motor Vehicles, "In their special two-hour course, parents will learn about the junior operator's law and their role in supporting the law, how to teach their child to drive safely, what skills their child needs to master to pass the road test, and how to identify family member driving behaviors which may negatively influence a new driver." This is just one of many changes brought about by last year's changes in the Junior Operator Law, St.2006, c.428. The Registry has a page that helps users locate a driver's education school by town.

SJC Briefs Available Online!

The Supreme Judicial Court has started to add its case briefs to its public docket information beginning with cases scheduled to be argued at the September, 2007 sitting. The briefs will be linked from the docket sheet for each case. We are told they will be archived there and not removed.

To give you an idea of what the briefs links look like, use the search page to do a search for the docket sheet for Commonwealth Electric vs. Leslie H. MacCardell with Docket Number SJC-09851. Docket sheets are searchable by party name, attorney, docket number, lower court and lower court judge. When the docket sheet appears, scroll down to the section titled BRIEFS.

In this case, there are links to the Appellant's Brief, the Appellee's Brief, and an Amicus Brief.

Sadly, the Appeals Court will NOT be adding briefs to their website.

Access to Birth Certificates in Adoption

Last week, Gov. Deval Patrick signed a new law, St.2007, c.109 , which grants adoptees access to their original birth certificates after they turn 18. The law does not apply to all adopted people, however. You can get a copy of your original birth certificate only if you are an "adopted person 18 years of age or older who was born in the commonwealth on or before July 17, 1974 or on or after January 1, 2008 or ... an adoptive parent of an adopted person under 18 years of age and born in the commonwealth on or after January 1, 2008."

Plymouth is Now Open!

After a tumultuous two-week move, the Plymouth Law Library is now open for business in their new location at 52 Obery Street. Please stop in and say hello. And in the meantime, take a look at more pictures of the move.

Foreclosure Rescue Transactions Banned

A new regulation from Massachusetts Attorney General Martha Coakley, 940 CMR 25, "prohibits predatory, for-profit foreclosure rescue transactions," according to a press release issued earlier this week. "The new regulation also makes it an unfair or deceptive act to market foreclosure-related services without a precise description of how the promoter will assist persons in avoiding or delaying foreclosure." For more information on foreclosure, see Mass. Law About Foreclosure. For more regulations, visit our CMR pages.

Botsford Joins SJC

The newest Supreme Judicial Court Justice, Margot Botsford, was sworn in this week in time for the Court's fall session. According to the Boston Globe, "At the swearing in, Superior Court Chief Justice Barbara J. Rouse, described Botsford as a 'judge's judge' with a relentless intellect and an enormous appetite for work. 'She thinks lunch is for sissies,' Rouse said. 'Work is her passion.' "

Proposed changes to auto insurance

The Division of Insurance, has proposed changes to the way automobile insurance is regulated. A letter from the new Commissioner, Nonnie Burnes, outlines the changes. The proposed changes are intended to increase competition, and allow companies a larger role in setting their rates. The Boston Globe article highlights some of the changes, and has a Q & A article. if you don't want to read 30 pages of regulations. An earlier study group, established by the governor, released a report in March recommending many changes to the commissioner. Since Massachusetts is the only state that sets rates of auto insurance companies, this change is being welcomed by the industry, if somewhat cautiously. There is a public hearing on September 20th, where you can voice your concerns and your support. For more information see our page on Automobile Insurance.

Plymouth Law Library is Moving

The Plymouth Law Library will be closed until September 10 when it will reopen in the new courthouse at 52 Obery Street in Plymouth. We are so excited for our colleagues in Plymouth and their library users, who will enjoy a brand new library with more space, more seating, more computers, lots of parking, and easy accessibility (no more narrow old stairs!).

We'll try to bring you updates on the move over the next couple weeks. You can see a Patriot Ledger video about the effect of the move on downtown Plymouth, including footage of the new courthouse, at YouTube.

Vance Report

The Vance Report, a study of the Mass. State Police Crime Lab, is now available on our site. This report details issues at the crime lab and makes several key recommendations. The statistics cited garnered the most headlines when the report was issued in June 2007. According to the report, the lab has "899 unassigned and unworked criminal cases, approximately 4,000 unassigned and unworked sexual assault kits, 2,000 assigned DNA cases, but unworked DNA cuttings." There are "old and unassigned DNA cuttings from more than 10,000 cases. Potential cases having DNA evidence total more than 16,000 at the present time." The report was endorsed by the Secretary of Public Safety and Security and the Superintendent of the Mass. State Police, who are committed to using the report as a "blueprint for reform."

More information on criminal procedure is available at Mass. Law About Criminal Procedure.

Foreclosure Assistance Hotline

There is a new resource available to help those facing foreclosure: a foreclosure assistance hotline administered by Legal Advocacy and Resource Center (LARC). According to Attorney General Martha Coakley, “Low-income Massachusetts residents...may call (800) 342-5297 or (617) 603-1700 and leave a message in the "foreclosure assistance" voice mail box. Each day, Legal Advocacy and Resource Center (LARC) will return the calls, determine how to best assist the caller and provide general advice. If the homeowner meets the eligibility criteria, LARC will refer the homeowner to Volunteer Lawyers Project of the Boston Bar Association, who will assign each case to a pro bono lawyer.” More information on the topic is available at Mass. Law About Foreclosure.

Massachusetts Guide to Evidence...

...(Just don't call them rules!). Unlike most states, Massachusetts still has no Rules of Evidence, but the Court is getting closer to one cohesive statement of Massachusetts evidence guidelines with the newly released Preliminary Draft of the Massachusetts Guide to Evidence. While the organization of the guide is based on that of the Federal Rules of Evidence, and it often uses the language of the Proposed Massachusetts Rules of Evidence or Federal Rules of Evidence, the Committee makes it clear that this is not a rules book. "Ultimately, of course, the law of evidence in Massachusetts is what is contained in the authoritative decisions of the Supreme Judicial Court and of the Appeals Court, and the statutes duly enacted by the Legislature."

Still, the guide will clearly be a single reliable source of the law of evidence. According to Mass. Lawyers' Weekly, "While the guide will not have the same authority as formal rules of evidence, [Superior Court Judge Peter] Agnes and several others familiar with the preliminary draft said lawyers will be able to cite directly to its sections and use it as an authoritative source before the court. "

Small Claims Reform

A report just issued by the Small Claims Working Group of the Mass. District Court contains several key recommendations for reform. Last year, the Boston Globe ran a series detailing the failures of Small Claims Courts, and this report addresses many of those concerns. Recommendations include the following:

1. Changes to Uniform Small Claims Rules. The group recommends rule changes in nine areas, including providing better notice to debtors, clarifying the role of "covering attorneys," and providing some protections to defendants who appear for trial but trial does not occur because the plaintiff is not ready.

2. Changes to Small Claims Standards. Recommendations for changes to standards are designed to regulate the balance of power, perceived or actual, between plaintiffs and defendants and improve notice to defendants.

3. Changes to Statute. The group recommends an increase in the exempted amount for an automobile (currently $700) but was unable to agree on an appropriate amount.

More information on the report is available from the Boston Globe. More information on Small Claims is available at Mass. Law About Small Claims.

Internet Hunting Banned

On August 2, the state enacted St.2007, c.83: An Act Prohibiting Internet Hunting. As the name suggests, Internet hunting is the practice of using a computer to remotely control a weapon to hunt an actual animal. According to the Boston Globe, Massachusetts is the "34th state to ban hunting via an Internet connection." More information on legal issues regarding animals can be found at Mass. Law About Animals.

Identity Theft

Earlier this month, Governor Deval Patrick signed St.2007, c.82: Security Freezes and Notification of Data Breaches. Focused more on providing protection for consumers than on punishing offenders, this new law mandates reporting of personal data breaches, provides guidelines for disposal of personal information, and gives the consumer the ability to place a "security freeze" on credit reports. The Governor's site includes links to his podcast describing steps consumers can take to protect their information, a transcript of the podcast and more. For more on identity theft, see Mass. Law About Identity Theft.

Reprieve for Fernald

US District Court Judge Joseph L. Tauro ruled yesterday in Ricci v. Okin that residents of the Fernald Developmental Center in Waltham must be given the option to stay at Fernald as one of their placement options. He wrote:

"Any further communication from Defendant Commonwealth of Massachusetts Department of Mental Retardation to Fernald residents and their guardians which solicits choices for further residential placement shall include Fernald among the options which residents and guardians may rank when expressing their preferences."

"It does not mean that the Commonwealth may never close Fernald. It does mean, however, that the DMR must carefully assess the needs and wishes of each resident, and provide a genuine and meaningful opportunity for their guardians to participate in their placement decisions."

According to the Boston Globe, the ruling "was greeted as a victory by relatives and supporters of Fernald's residents." The Fernald school has been the subject of litigation for over thirty years.

Probate and Family Court Forms

Big news from the Mass. Probate and Family Court Department! They have put many of their forms on the web, in a fillable format that allows users to fill in the form online and print it for filing. Right now, they have forms for divorce, guardianship of a minor, name change, child support, and a few other categories. According to their site, "forms will be added as they become available." While there are limitations (you can't save the filled-in form, and you can't file the form electronically), this is still a huge step toward making forms more accessible and user-friendly. Let's hope they serve as an inspiration to the other court departments!

Available forms are all linked by subject from our Legal Forms pages.

Sales Tax Holiday

This weekend, August 11-12, 2007, is a sales tax holiday in Massachusetts. According to Dept. of Revenue TIR 07-12 , "on those days, non-business sales at retail of single items of tangible personal property costing $2,500 or less are exempt from sales and use taxes, subject to certain exclusions." The TIR provides more specifics on what is excluded, including motor vehicles, boats, meals and more.

While the benefit is more psychological than financial (even a 5% off sale on another day results in a lower overall cost to the consumer), the holiday does boost sales of retailers considerably. “'Sales this weekend will be comparable to the weekend before Christmas (approximately $500 million is taxed & non-taxed retail sector sales), at a time that otherwise stores would be dead,' said President of Retailers Association of Massachusetts Jon B. Hurst," in the Westborough News.

For more information on tax issues, see Mass. Law About Taxation.

Corporate Manslaughter Charge in Big Dig

Attorney General Martha Coakley announced yesterday that a Suffolk Grand Jury issued an indictment for involuntary manslaughter to Powers Fasteners, Inc. , the epoxy supplier, for their role in the Big Dig ceiling collapse last summer. According to Coakley, the company knew that the epoxy being used in the tunnel "was unsuitable for sustained loads, " but " the corporation did not take any steps to caution the Project managers against use of the Fast Set product for that application."

Since a corporation cannot be sent to jail, the maximum penalty under the manslaughter statute, MGL c.265, s.13, is $1000.

In Com. v. Angelo Todesco Corporation, 62 Mass. App. Ct. 599, the court briefly explains the elements required to establish corporate criminal responsibility: " To prove that a corporation is guilty of a criminal offense, the Commonwealth must prove the following three elements beyond a reasonable doubt: (1) that an individual committed a criminal offense; (2) that at the time of committing the offense, the individual "was engaged in some particular corporate business or project"; and (3) that the individual had been vested by the corporation with the authority to act for it, and on its behalf, in carrying out that particular corporate business or project when the offense occurred."

According to The Boston Channel, "the company will be arraigned in Suffolk Superior Court on Sept. 5, 2007."

Margot Botsford SJC Pick

Yesterday, Governor Deval Patrick nominated Superior Court Judge Margot Botsford to the Supreme Judicial Court. The Governor's Council plans to set a date for Botsford's confirmation hearing next week.

Judge Botsford was responsible for the Hancock Report, a 350-page report to the Supreme Judicial Court on public school funding in Massachusetts in the case Hancock v. Driscoll. While the SJC dismissed the case, concluding it was the role of the legislature and not the court to determine the structure of school funding, "three days after the SJC's decision, the state legislature-having 'seen the handwriting on the wall,' says Botsford-passed the Education Reform Act, which restructured the formula by which state funds were doled out to local districts," according to the Northeastern University Alumni Magazine. Law librarians know her best from her work as a long-time editor of Handbook of Legal Research in Massachusetts.

More information on the judicial nomination and approval process is available from the Judicial Nomination Commission.

New Mexico Couples May Marry

According to GLAD, "because New Mexico’s laws do not prohibit marriage between parties of the same gender," the state has "issued a corrective notice to all Massachusetts city and town clerks authorizing them to allow same-sex couples from New Mexico to apply for marriage licenses." We're still trying to get our hands on the notice (and wishing more state agencies would post such things on their websites), and will provide a link here when we have it.

In the meantime, more information on same-sex marriage in Massachusetts for out of state couples is available on our site at Law About Same-Sex Marriage.

Attorney-Client Privilege and Public Records Access

Drawing a distinction between the work-product doctrine and attorney-client privilege, a unanimous Supreme Judicial Court ruled last week in Suffolk Construction v. DCAM, 449 Mass. 444 (2007), that documents covered by attorney-client privilege are not public records under MGL c.66, s.10 and MGL c.4, s.7, cl. twenty-sixth.

Although the court had previously held in General Electric Co. v. Department of Environmental Protection, 429 Mass. 798 (1999), that the work-product doctrine did not exempt certain documents from the public records law, since attorney work-product was not specifically included in the list of exemptions in MGL c.4, s.7, cl. twenty-sixth, the current case reaches a different conclusion for documents covered by attorney-client privilege.

The court also contrasts this case with District Attorney for Plymouth County v. Board of Selectman of Middleborough, 395 Mass. 629 (1985), in which it held that public officials could not hold closed meetings in order to consult with their attorneys because it would be in violation of the public meeting law, stating "the Legislature enumerated seven exceptions to its prohibition against private meetings of governmental bodies. '[E]xceptions are not to be implied.'"

For more information, see Law About Freedom of Information and Public Records.

Popular Magazines

We already offer you home access to law review articles through HeinOnline, but now we're pleased to bring you a database of more popular titles. General Reference Center Gold includes Consumer Reports, Newsweek, Sports Illustrated, People, Vanity Fair and many more. It also includes more scholarly titles. All you need is a library card to check it out.

Massachusetts Newspapers Now Available

At last some good news! Our cardholders can now access all the databases available through the Mass. Board of Library Commissioners using their Trial Court Law Libraries Card. There is a great deal of content available, so we'll try to profile one database at a time. Today, we bring you Massachusetts Newsstand, available through ProQuest, which brings you twelve Massachusetts newspapers full-text. They are:

• Berkshire Eagle 2005-
• Boston Globe 1980-
• Boston Herald 1991-
• Business West (Chicopee) 1992-
• Gazette (Haverhill) 12/31/92-8/9/07
• Lowell Sun 2004-
• North Adams Transcript 2005-
• Patriot Ledger (Quincy) 1991-
• Plymouth County Business Review 1991-
• Sentinel & Enterprise (Fitchburg) 2005-
• Standard-Times (New Bedford) 1/4/92-8/19/97
• Worcester Telegram & Gazette 1989-

Just go to Massachusetts Newsstand, enter the barcode number from the back of your law library card and go!

§

How do you get that section symbol into a document? Well, you can hunt it down under the Insert drop down menu, and select Symbols, then look for it in that maze of symbols, OR...

hold the Alt key and type 0167. (It's like magic.)

Get the © symbol by typing Alt+Ctrl+C.
For more secret codes see : http://tlt.its.psu.edu/suggestions/international/accents/codealt.html#punc

Search of email requires a warrant

The Sixth Circuit Court of Appeals in a decision against federal investigators, ruled that the email users have a reasonable expectation of privacy. In Warshak v. U.S.A. the federal government had argued that email stored with service providers could be seized without warrants and without notice to the account holder. The case was heard by a three judge panel, so it could be appealed to the full court of appeals. There is a local connection, as the Boston Globe article mentions that the attorney for the defendant is from Boston, Martin G. Weinberg.
If this interests you, see our pages on Internet and Online Privacy, Privacy, and Employee Privacy.

Pay discrimination claim fails

A sex discrimination wage claim was thrown out by the Supreme Court this week, nullifying a previous jury award for damages. Lilly Ledbetter had sued Goodyear after retirement, claiming she has been discriminated against during her 20 years of employment. She filed suit under 42 USC 2000e-2(a)(1). Although her salary lagged behind her colleagues by 15 to 40% by the time of her retirement, the court held that since no discriminatory acts occurred within 180 days of the claim, the statute barred evidence of discrimination prior to that period. The dissent, written by Justice Ginsburg urges Congress to review the statute to take into consideration the fact that most workers do not know the salaries of their co-workers.
The Boston Globe has a story. We also have a topical page on discrimination.

Google Patent Search

Google now has a patent search feature. According to their FAQ, "Google Patent Search covers the entire collection of patents made available by the USPTO—from patents issued in the 1790s through those issued in the middle of 2006. We don’t currently include patent applications, international patents, or U.S. patents issued over the last few months, but we look forward to expanding our coverage in the future." Use the advanced search to search by patent number, inventor, assignee, class/subclass and more. Results include all drawings as well as the textual material.

SJC Adds Caselaw Access

The SJC Reporter of Decisions' site has always had the earliest access to new Supreme Judicial Court and Appeals Court decisions, but the site's usefulness had been limited by the fact that they only provided access to the most recent two weeks' decisions. Now, without much fanfare, they have added access to cases for the last five years in their Opinion Archive section. Excellent news! Since we firmly believe in public access to public information, here's hoping they continue to add to the archive to increase the time period covered.

Whistleblowing for taxes

Now that the high season for taxes is over, this bit of code caught our attention. In December, a new federal tax whistleblower statute took effect. The federal statute, title 26 section 7623 is brief, and interesting. It will award payments of between 15 and 30 percent of the amount the IRS collects as a result of information about tax fraud and underpayments. In cases of corporations, this could become quite lucrative. Using Form 211, a taxpayer can claim their reward. To report the suspected fraud or underpayment, the person can use a form, write a letter, or call. Interestingly, the IRS does not include information about whistleblower rewards on their page, but mentions the possibility of a reward, almost as an afterthought at the end. They have appointed a person to head the Whistleblower Office, but we can't find any more information about the office. The Wall Street Journal reports it is quite a success.
For more tax info, see our taxation page.

Coakley on Same-Sex Marriage

Massachusetts Attorney General Martha Coakley stated on Friday, May 11, that the proposed state constitutional referendum seeking to ban gay marriage may be unconstitutional. She warned that placing such a referendum on the ballot may trigger prolonged litigation if legislators approve the ballot measure and voters endorse the change in the Massachusetts constitution. Speaking before the Massachusetts Lesbian and Gay Bar Association, Coakley noted that even though the Supreme Judicial Court ruled that such an amendment could be placed on the ballot if the legislature approved it, at least two SJC justices have opined that the landmark Goodridge v. Mass. Department of Public Health, 440 Mass. 309, 798 NE2d 941 (2003) decision legalizing same sex marriage “may be irreversible because of its holding that no rational basis exists, or can be advanced, to support the definition of marriage” as between one man and one woman. Coakley also stated that the amendment would discriminate against same-sex couples by removing rights they already had been granted.

Sex By Fraud Isn't Rape

In Suliveres v. Commonwealth, the Supreme Judicial Court held yesterday that "intercourse where consent is achieved by fraud does not constitute rape." In Suliveres, the Commonwealth had alleged that the woman believed she was having sex with her boyfriend, when in fact it was her boyfriend's brother. This decision upheld the court's 1959 decision in Commonwealth v. Goldenberg, 338 Mass. 377, which held that "it is not rape when consent to sexual intercourse is obtained through fraud or deceit." They then called on the Legislature to amend the rape statute, G. L. c. 265, § 22, if they felt that sex through fraud should be categorized as rape. See Mass. Law About Rape for links to this and other rape laws.

SJC upholds libel verdict again newspaper

The Supreme Judicial Court today ruled that the $2 million jury verdict in Murphy v. Boston Herald will stand. The court unanimously ruled that the reporter knowingly published false statements with actual malice about Judge Ernest B. Murphy. The Boston Globe reports here. To better understand the law about libel or slander, see our page about defamation.

Eviction upheld for criminal activity

The Supreme Judicial Court yesterday released a decision which allowed the Lowell Housing Authority to evict a tenant for criminal activity that did not occur on the premises. In LHA v. Melendez, the court held that the statute allows for eviction for criminal activity that "threatens the health, safety, or right to quiet enjoyment of any LHA housing development by other tenants." The language, from the lease, is taken verbatim from section 1437d of title 42 of the US Code. The court considered the violence of the criminal activity, and the threat of continuing violent and threatening behavior a real danger to other tenants. See also our page on Eviction.

Law Day : Liberty Under Law...

...Empowering Youth, Assuring Democracy. In 1958, President Eisenhower established Law Day as a national observance dedicated to the principles of government under law. It was designated by Congress in 1961 to be officially celebrated on May 1st. This year, the American Bar Association has chosen a theme which asks us to listen to youth, and improve the way our laws protect and serve them. We encourage youth to understand their rights and responsibilities under our law. Take a look at our page on Juvenile Justice, and Child abuse and neglect.

Supreme Court restricts abortions

The U.S. Supreme Court has released a decision which upholds a federal statute prohibiting what is called "partial birth abortions." The case, Gonzales v. Carhart states that the Partial-Birth Abortion Ban Act of 2003 can stand, despite having relied on moral grounds, rather than factual findings of the district courts. The lack of an exception for the health of the woman is not an unconstitutional burden on the woman. For other information see our page on Abortion.

Prosecutors Win Drunk Driving Challenge

The Supreme Judicial Court ruled yesterday in the cases of Commonwealth v Colturi and Commonwealth v. Thomas that prosecutors need not provide expert testimony to extrapolate from blood alcohol level at the time the test is taken to what it would have been at the time of a drunk driving stop. Lower courts had ruled in favor of defendants and required prosecutors to provide expert evidence, and prosecutors appealed. In its ruling in Colturi, the court held that "retrograde extrapolation" is not necessary to admit breathalyzer evidence, where the test is given up to three hours after the traffic stop, but that the exact length of time permissible in a given case should "fall within the sound discretion of the trial judge."

New computers, old computers and Earth Day

A regular part of being wired (or wireless, for that matter) is the necessity for computers. Desktops, laptops, tablets and handhelds…we keep buying them, and we keep getting rid of the old ones. With Vista finally released, businesses and consumers are buying new computers in droves. It has even generated more interest in new Apple computers. So what do you do with your old equipment, with Earth Day around the corner on April 22? Massachusetts does not allow CRTs to be disposed at solid waste disposal facilities (310 CMR 19.017). There is often a fee to drop off a monitor or TV at your local facility, the DEP explains.
Dell has a few options, will accept any make, and even picks them up at your home.
Hewlett-Packard will also take any brand, and sends a shipping tag for between $13 and $30. They offer HP coupons for HP merchandise in return.

Lenovo's ThinkPlus Recycling Service offers prepaid shipping labels for $30 each to be used for sending any manufacturer's old equipment for recycling or refurbishment. They use a designated center to recycle your materials and sends reusable equipment to Gifts In Kind International, a charity specializing in product philanthropy.
Apple also offers $30 shipping labels for any brand equipment. Free shipping if you purchase Apple equipment.
Plenty of other groups, such as the National Cristina Foundation (http://www.cristina.org) and Share the Technology (http://sharetechnology.org) specialize in distributing reusable computers to people or organizations in need of computers. A partial list of donation sites can be found at the DEP page.

Names of Jurors Can be Sealed

On the heels of their March 28 decision in Eagle-Tribune v. Lawrence Clerk Magistrate that the press has no right of access to show-cause hearings, the Supreme Judicial Court decided last week in Com. v. Silva that a judge may seal the names of jurors with good cause. In this case, Bristol Superior Court Judge Gary A. Nickerson sealed the names of jurors in a gang-related murder trial out of fear for their safety. The New Bedford Standard-Times had sought access to the juror information after the trial, and brought this case after the records were sealed.

Pring-Wilson to Get New Trial

In Com. v. Pring-Wilson, the Supreme Judicial Court ruled today that Alexander Pring-Wilson, previously convicted of voluntary manslaughter after an altercation in Cambridge, is entitled to a new trial.

In 2005, after Pring-Wilson's conviction, the SJC decided the case of Com. v. Adjutant, 443 Mass. 649. In that case, much as in Pring-Wilson's, the defense had sought to introduce evidence of prior bad acts by the victim to support the notion that the defendant had acted in self-defense. The court in Adjutant established a new rule "that 'where the identity of the first aggressor is in dispute and the victim has a history of violence,' the judge has the discretion to admit 'evidence of specific acts of prior violent conduct that the victim is reasonably alleged to have initiated, to support the defendant's claim of self-defense.' Declaring that the decision marked a 'new common-law rule of evidence,' we stated that the rule 'shall apply only prospectively.'"

Shortly after that decision, and after holding a hearing, the trial judge concluded, "in the exercise of her broad discretion under rule 25 (b) (2), that the integrity of the defendant's trial was compromised by his inability to introduce evidence of the violent pasts of Colono and Rodriguez." The Commonwealth appealed, and direct appellate review was granted. In today's case, the SJC affirmed the trial judge's order granting the defendant a new trial.

The opinion describes the facts of the case at some length, and also provides an analysis of judicial discretion to grant a new trial.

Child support modifications – noncustodial parental income

The Appeals Court recently clarified its stance on child support modification requests when the noncustodial parent’s income increases. In an earlier case, Brooks v. Piela the court ruled that an increase in child support was warranted, based on the fact that there was a greater disparity between the standards of living between the two households, even though the custodial parent’s income had also increased.

In Smith v. Edelman, reported on April 2nd, the Appeals Court decided against an upward adjustment of modification based on the reasoning that the children's needs were well met and there was no material disparity in the standards of living between the custodial and noncustodial households. They went on to state “the goal of maintaining the standard of living of the family as though it had remained intact is not without limit; an increase in child support based solely on an increase in income of the noncustodial spouse may have the effect of constructively distributing the noncustodial parent's estate, and is accordingly disfavored.”

These cases should get some attention as the topic of child support modification is hotly contested. View our topical page on Child Support.

New restrictions in effect for Junior Operators

Changes to the Junior Operator's License went into effect March 31, 2007. According to the Lowell Sun, a speeding ticket will result in a minimum fine of $50, an automatic license suspension of 90 days, a $50 surcharge, completion of a driver retraining course, and before license reinstatement, a fee of $500. These changes and more are included in Chapter 438 of the acts of 2006, amending several sections of chapter 90 of the General Laws. The Registry of Motor Vehicles has info about the new changes on the page about Junior Operator Licenses. And if you do get a ticket, don't forget our page on Traffic Violations, and our Find a Lawyer page.

Massachusetts wins at the Supreme Court

The state of Massachusetts won an important case decided today by the U.S. Supreme Court.     In Massachusetts v. EPA, the court decided 5-4 that the Environmental Protection Agency does have the authority to regulate carbon dioxide and other greenhouse gas emissions from cars. The oral argument was held on November 29th and the transcript is available.