Massachusetts Erroneous Convictions Law

Yesterday, in Guzman v. Commonwealth, the Appeals Court provided guidance on section 1(B) of MGL c.258D, which provides for relief for the erroneously convicted under certain circumstances.

The court ruled that eligibility under 1(B)(ii) for those who have been granted judicial relief "on grounds which tend to establish the[ir] innocence," means "no more and no less than grounds resting upon facts and circumstances probative of the proposition that the claimant did not commit the crime." Therefore, the plaintiff's claim was allowed to go forward.

The court went on to explain that this was simply a decision on the threshold issue of eligibility to proceed, since that was the issue that was briefed, but that factual innocence may be an appropriate issue for summary judgment in such cases. "We recognize, as a theoretical matter, that there could well be instances where the Commonwealth would be entitled to judgment as matter of law (e.g., summary judgment or directed verdict) on the actual innocence issue. The question presented would be whether, viewing the facts in the light most favorable to the claimant, a jury could find, by clear and convincing evidence, that the plaintiff did not commit the crime. "

Deferred First-Year Associates May Serve as Law Clerks

Due to the current fiscal crisis, the Massachusetts courts are unable to hire law clerks for next year. The Chief Justice for Administration and Management asked for an ethics opinion on whether the courts could "accept as volunteer interns law firm associates who have had their September 2009 start dates deferred and who will be receiving stipends and/or health benefits from their respective law firms during the deferral periods."

The SJC Committee on Judicial Ethics issued an opinion on June 9, 2009, indicating that first year associates of law firms whose employment has been deferred would be permitted to serve the court as volunteer law clerks under a double-blind system. Judges would not know what firm employs the law clerk, the law firm could not acknowledge their participation in the program, and the law clerks themselves could not share the name of their employer, "in print or electronically, including on social networking sites such as Facebook and Twitter, during the period they work for the judges of the Trial Court."

SJC clarifies Vacation as wages

The SJC in a recent ruling has made it clear that employees must be paid for earned vacation upon termination. In Electronic Data Systems vs. the Attorney General, the court ruled that chapter 149 sec. 148 "requires such an employee to be paid for unused vacation time remaining at the time of involuntary discharge..." The policy of the corporation contravened the statute. The Attorney General's office had long interpreted the statute in that way. For more information on related topics, see our page on termination, wages, as well as our page on unemployment.

The Site is Back Up

Our transition to the new design is complete, and the site is fully functional once again. Because every page has moved (and the search function won't work well until Google re-indexes the site), here's some basic information to help in your navigation:

Click on Law by Subject for our "Law About" subject guides, popular name table and forms.

Click on Law by Source for cases, regulations, court rules, executive orders, town bylaws, and any other primary law.

Click on Library Locations and Services for library addresses, hours, phone numbers, etc., policies and services.

You'll also find more self-explanatory buttons for Databases, the Library Catalog and more.

If you can't locate the information you need, ask us. We'll be happy to help you find what you're looking for.

Anti-Smoking Legislation

The Watertown Tab & Press has a handy summary of pending anti-smoking legislation in Massachusetts in their June 12 edition. While you'll need to scroll down a bit to see it, in a section called "Tobacco Crackdown" the paper lists a number of pending bills, including proposals prohibiting:

• smoking within 25 feet of the door of a public building (H 2162)
• people under 18 from buying, possessing or smoking tobacco (H 3593)
• sale of flavored cigarettes (H 2076)
• smoking in a car with children (H3475)
• smoking by anyone anywhere (H 2129)

Information on existing smoking laws is available at our Law About Smoking.

FDA Oversight of Tobacco

The Family Smoking Prevention and Tobacco Control Act, HR1256, passed the House last week by a vote of 307-97 and is headed to conference committee. The bill would give the FDA authority to regulate tobacco products.

Website Redesign

Our website has been undergoing a major redesign in order to make it more handicapped accessible. On Saturday and Sunday June 20-21, the old site will come down and the new site will go up in its place. Because the blog and all the web pages will be down for a period of time that weekend, we will try to provide information on twitter about how to access our catalog and databases, which are hosted remotely.

Nearly every page on the site will remain on the site in the new design, but everything is moving. If you link to our site and would like to know where a given page will be as of June 21, please let us know and we can give you the new URL.

Open House at Worcester Law Library

Please join us on Thursday June 4, 2009 from 2-4 for an open house at the beautiful new Worcester Law Library at 184 Main Street in Worcester. See some pictures of the library at Flickr to get inspired!

IOLTA Guidelines Amended

The Interest on Lawyers' Trust Accounts (IOLTA) Guidelines have been amended effective July 1, 2009. The amendments provide "clearer language about proper investment of IOLTA funds reserved in a stabilization fund. In Sections 5(d), 5(e) and 4(c), [the amendments provide] a more complete Guideline regarding the amounts of funds that may be reserved by and how such funds are to be accounted for by the three charities which receive IOLTA funds. In Sections 5(e), 5(f), 4(a) and 4(b), [the amendments provide] related procedural changes to reflect the new Guidelines."

Finding Attorney General Opinions and Bid Protest Decisions

Older Attorney General Opinions are available online from the State Library, or in print in any of the Trial Court Law Libraries.

As of October 2001, there have been no formal Attorney General Opinions issued.  However, the Bid Protest Unit of the AG’s Fair Labor Division regularly issues decisions, pursuant to G. L. c. 149 § 44A et seq., resolving protests regarding public bidding procedures.  If you need any of these decisions, call the Law Library at the Office of the Attorney General at 617-963-2098.

Black's Law Dictionary for the iPhone

West has unveiled an app for the iPhone for the 8th edition of Black's Law Dictionary. The app sells for $49.95. For the record, the 9th edition is being published in hard copy in June, and we were quoted $75.00. No news on whether they plan to update it to the 9th any time soon.
See the West promo on their blog.
It could come in handy for those on the fly questions...

Limited Representation Expanded

The Massachusetts Supreme Judicial Court has issued an order expanding the availability of limited assistance representation to courts beyond those included in the pilot project. Originally, attorneys were permitted to assist self-represented litigants in the Hampden, Suffolk and Norfolk Probate and Family Courts without taking on full representation. The program proved so successful that the SJC has decided to permit limited representation in any court in which it is authorized by that court department's Chief Justice, with the approval of the Chief Justice for Administration and Management. The order includes applicable forms and is effective May 1, 2009.

Worcester Law Library Move

The Worcester Law Library has begun the process of moving down the street to their new location, but the library is still open and happy to serve you at its current location in the old courthouse at 2 Main Street. Because things are somewhat chaotic, you may want to call ahead to 508-753-1312 before visiting.

Road laws updated for bicycles

Chapter 525 of the acts of 2008 amend existing laws regarding bicycles on the roads. The law will require law enforcement to be trained in bicycle safety enforcement. It will target both the actions of bicyclists, as well as drivers that endanger cyclists. Bicycles are expected to follow the rules of the road, although there are a few exceptions. They must stay on the right hand side of the road, but can pass a car on the right when it is safe to do so.

The state does not expect the training to be implemented until 2010, but the law is in effect today.

We also have a page on traffic violations for other laws.

Retrievelaw is Working Once Again

Retrievelaw is back! We apologize for the inconvenience earlier today.

Moses Tumbles

WHDH reports that the statutue of Moses in the Worcester courthouse was knocked over by an irate man yesterday and is badly damaged. The statue stood in the old courthouse for nearly one hundred years and was just refurbished and installed in the new location a few weeks ago (See pictures of the move on our flickr site).  It is not yet known if the statute can be repaired.

Money and Divorce Brown Bag Lunch

Susan Miller of Aurora Financial Advisors will present Money and Divorce: Challenges in Tough Economic Times at the Norfolk Law Library Wednesday April 29 from 12:30-2:00. She will focus on:

• Tax implications of alimony/child support arrangements
  
• Options for division of equity in marital home
  
• Capital gains issues
  
• Issues regarding division of financial assets
  

Pre-registration is not necessary. Bring your lunch, beverages will be provided. Contact the library for directions or more information.

Do you want to be a lawyer?

The National Conference of Bar Examiners has made the 2009 edition of Comprehensive Guide to Bar Admission Requirements available for free download at http://www.ncbex.org/comprehensive-guide-to-bar-admissions/

IRS guidance on recovering taxes on false Ponzi profits

The IRS has issued rules which offer some relief for victims of the Bernard Madoff swindle and other like schemes. Although full recovery of losses isn't expected, taxpayers will be able to claim money lost as "theft losses" rather than regular investment losses. The rules apply to cases where the authorities have alleged fraud. Taxpayers can deduct 95% of their net investment minus any recoveries made through the other sources.
According to the commissioner "the investor generally can claim a theft loss deduction not only for the net amount invested, but also for the so-called “fictitious income” that the promoter of the scheme credited to the investor’s account and on which the investor reported as income on his or her tax returns for years prior to discovery of the theft."
Taxpayes will not be able to amend prior tax returns.
The Commissioner's comments which are on the web summarize the the rules here. The revenue ruling is available as well as the revenue procedure.

Free Program for Probate and Family Court Litigants

Going to court for the first time can be a little overwhelming. Help is at hand for anyone with a case pending in the Norfolk County Probate and Family Court, or anyone who is contemplating such an action. The Probate and Family Court has announced a monthly program that will help litigants understand the process of maneuvering through the court. The next session is April 29, 2009. This is being billed as a pilot program so hopefully they will expand to other counties if this program is successful. Staff members from our Norfolk Law Library will be among the presenters. According to the press release,

"'Navigation Through the Probate and Family Court' is an educational program being presented by staff and others partnering with the Norfolk Probate and Family Court, including the Norfolk Law Library. Basic information regarding the Probate and Family Court process will be presented, followed by a general question and answer period. Topics will include, but not be limited to: court protocol, basic filing information, services available, resources, how and where to obtain legal assistance and the limitations of the court. The Program will take place the last Wednesday of each month beginning March 25, 2009 at 7:00 p.m. and should run approximately 1 ½ hours. The location for at least the first six (6) meetings will be Canton High School, 990 Washington Street, Canton MA."

Mass. AG Opinions 1832-1989 Available

The Massachusetts State Library has provided access to Attorney General Opinions and Reports 1832-1989 through the Internet Archive. Their State Documents Online lists many other collections of government documents available online. Our thanks to the state library for providing easy access to so much information!

Cinema of Law Film Series

Our Berkshire Law Library is happy to present their third annual Cinema of Law series! Films about the law will be shown in the auditorium of the Berkshire Athenaeum again this year on Tuesdays in March. Each of the films in the film series will be introduced by a member of the Berkshire Bar. No admission will be charged.

Dates, films and speakers are as follows:

• March 10 The Return of Martin Guerre to be introduced by Justice Francis Spina
• March 17 Witness for the Prosecution to be introduced by Joseph Pieropan
• March 24 Kramer vs. Kramer to be introduced by Hon. Rudolph Sacco
• March 31 Norma Rae to be introduced by Kevin Kinne

A presentation will begin at 6 p.m., and the movies will follow. Free Popcorn will be served, and there will be a display of law books related to the subject of the movie from the Law Library’s collection.

Gary Smith and Jack Houghton will be previewing the series on John Krohl‘s radio program “Good Morning, Pittsfield” on WTBR sometime in early March. Law library staff members hope also to have a display related to the film series on the 1st floor of the Athenaeum.

Acts and Resolves 1692-2008 Available

Updated! We reported last month that Acts from 1876-2008 were available online, but now there are nearly 200 more years of coverage.

The Massachusetts Acts and Resolves from 1692-2008 are now available online through the State Library. Apparently this is the product of the partnership with the Joseph P. Healy Library at UMass Boston that was announced last August. These acts are linked from Mass. Primary Law.

Thank you to both libraries for making such a valuable resource available!

Expungement of Record After Dismissal of Complaint OK

Yesterday, in Commonwealth v. Boe, 73 Mass. App. Ct. 647, the Mass. Appeals Court ruled that a district court judge could expunge a criminal record after a complaint was dismissed, and was not limited to sealing the record under MGL c.276, s.100C. "It is one thing to initiate a prosecution against a person who has a colorable involvement in a crime, but it is unacceptably Kafkaesque to initiate a prosecution where that person is disconnected from the charged crime. To allow Boe's name to be carried forward in court records in these circumstances would, as the judge found, constitute a miscarriage of justice, because sealing "does not render the sealed records inaccessible to law enforcement authorities." ... "The judge recognized that the sealing remedy of § 100C was neither applicable nor adequate, and properly applied the purging recognized by statute."

New titles on education

Two books crossed our desks this week that caught our eye. College and University Law Manual, published by MCLE is arriving at the 17 law libraries. It includes chapters on student discipline, privacy and violence, as well as sections on intellectual property in the context of a university, and of course, a section on Title IX and student athletics. The chapter that caught our eye was on institutional funds, included restricted gifts and endowments. Timely, in light of recent events at Brandeis and other schools. Another chapter covered the issue of academic research compliance and misconduct.
The second book is entitled Disciplining students with behavioral problems in a legally compliant manner, published by National Business Institute. It highlights case law, and has a section on bullying. We also have a topical page on Bullying, which is an issue of recent concern. This title is available at a few locations, but can be borrowed throughout the system.
Remember, we are lending libraries, and you can take most of our materials out for two weeks at a time. Find out how to get a card.

New Superior Court Rule 9A

The Massachusetts Superior Court has amended Rule 9A effective March 2, 2009. The new rule includes substantial changes, particularly in its incorporation of new technologies. For example, the new rule requires parties to include email addresses on papers, and requires that "the statement of material facts shall be contemporaneously sent in electronic form by email to all parties against whom summary judgment is sought in order to facilitate the requirements of the following paragraph. The statement of material facts in electronic form shall be sent as an attachment to an email and shall be in Rich Text Format (RTF) unless the parties agree to use another word processing format."

This and all other Mass. court rules can be found at Massachusetts Rules of Court.

Criminal Jury Instructions Online

The Massachusetts District Court criminal model jury instructions are now available online in their entirety.  You can find a link to the instructions and other criminal procedure resources at our Mass. Law About Criminal Procedure page.

Uniform Probate Code

Last week, Massachusetts adopted the Uniform Probate Code, St.2008, c.521, resulting in major changes to current probate laws.  The new law repeals current chapters 189, 190 and 190A. According to the Mass. Bar Association,

"The reforms increase uniformity with other states, add protections for those under guardianship and the beneficiaries of trusts, eases the administration of probate matters for judges and court personnel and reduce delays for citizens. Among the changes are:

•  Mandating courts to monitor guardianships and requiring guardians to issue annual reports.
  
•  Shorten to seven days after the date of death (from as long as five months) the length of time it takes to appoint an estate administrator
  
•  In the case of no will, the spouse gets the entire estate if the children are all of the marriage.
  
•  Trustees will be required to notify beneficiaries of accountings and acceptance of appointment."
  

While some changes are effective July 1, 2009, most do not take effect until July 1, 2011. 

You can find links to this and other probate laws at Mass. Law About Wills and Estates. Remember, too, that you can always locate laws by name by using our Mass. Law by Popular Name table. 

Self-Represented Litigants Report

The Supreme Judicial Court Steering Committee on Self-Represented Litigants has released their report: Addressing the Needs of Self-Represented Litigants in Our Courts. The report focuses on six areas: (1) expanding access to legal representation ; (2) developing judicial guidelines and training programs ; (3) developing a resource and referral guide for self-represented litigants; (4) creating a handbook written by and for court staff that sets out principles for distinguishing legal information from legal advice; (5) investigating data collection methods; and (6) investigating physical and programmatic improvements that would make our courthouses more "user friendly."

This and other sources for and about self-represented litigants are linked from our Law About Self-Represented Litigants.

Marijuana Possession Law Effective Today

The new law decriminalizing the possession of one ounce or less of marijuana, St.2008, c.387,  is effective today.  A great site provided by the Executive Office of Public Safety and Security summarizes the law:

"As of January 2, possession of an ounce or less of marihuana or tetrahydrocannabinol (THC) will be a civil offense, punishable by a civil penalty of $100 and forfeiture of the marijuana under a new Section 32L of chapter 94C of the Massachusetts General Laws.  Additional provisions apply to violators under the age of 18.  Records of this new civil offense (a “Section 32L violation ”) will not be entered into the criminal offender record information, or “CORI,” system. "

We've linked to this and several other  sources that explain or analyze the law on our  new page, Massachusetts Law About Marijuana Possession.

SJC Rule 3:11 Amended

The Supreme Judicial Court has amended Rule 3:11 effective January 1, 2009.

The rule is amended "by inserting at the end of paragraph (6) the following two sentences: To facilitate transitions in Committee membership, the court may invite a newly appointed member whose term has not officially begun to observe Committee business for a period not to exceed three months prior to the commencement of the member's term. A member whose term has expired shall remain on the Committee pending appointment of his or her successor, and until the successor's term begins."

Links to this and all other Mass. court rules is available at Massachusetts Rules of Court.

New Color for Child Support Form

On December 22, 2008, the Probate and Family Court announced an Amendment to Uniform Practice XXXIII. Beginning January 1, 2009, the Child Support Guidelines Worksheet must be printed with black ink on light-blue colored paper, instead of the current requirement of black ink on yellow paper. You can find this and all other Mass. court rules at our Mass. Rules of Court page.

U. S. District Court invalidates wine sales law

A recent summary judgment by Judge Zobel of the U.S. District Court in Boston finds a Massachusetts state law restricting direct sales to consumers from out of state wineries unconstitutional. Mass General Law chapter 138 sec. 19b, section 19F, and section 2 relate to in state wineries selling their wines directly to the consumer and being able to ship directly to them. Out of state wineries were not afforded this opportunity. The state is enjoined from enforcing these statutes.
In Family Winemakers of California v. Jenkins the court found the practice discriminatory.
We can now order wine shipped directly to us from our favorite vineyards across the country. Just in time for holiday shopping.

SJC approves restrictions for foreclosures

The Supreme Judicial Court has upheld an injunction against a California bank preventing it from foreclosing on an "unfair" mortgage.
The decision, Commonwealth v. Freemont Investment and Loan sets a pre-foreclosure procedure for the bank to follow for loans featuring a combination of four "unfair" characteristics : "(1) the loans were ARM loans with an introductory rate period of three years or less; (2) they featured an introductory rate for the initial period that was at least three per cent below the fully indexed rate; (3) they were made to borrowers for whom the debt-to-income ratio would have exceeded fifty per cent had Fremont measured the borrower's debt by the monthly payments that would be due at the fully indexed rate rather than under the introductory rate; and (4) the loan-to-value ratio was one hundred per cent, or the loan featured a substantial prepayment penalty..."
This is apparently one of the first in the nation, according to Mass Lawyers Weekly.
For more information see our page on Foreclosures.

Appeals Court Rule on Unpublished Decisions

The Massachusetts Appeals Court has issued a final rule regarding the citing of Rule 1:28 opinions.
"If, in a brief or other filing, a party cites to an order issued under this rule, the party shall cite the case title, a citation to the Appeals Court Reports where issuance of the order is noted, and a notation that the order was issued pursuant to this rule; in addition, a party citing such an order shall include the full text of the order as an addendum to the brief or other filing. No such order issued before February 26,2008, may be cited."

Unemployment Extended Effective 11/23/08

"Congress has passed an expansion of the Emergency Unemployment Compensation Program. This extension originally provided up to 13 additional weeks of unemployment benefits, effective from July 7, 2008 through March 28, 2009 in Massachusetts. Effective on November 23, 2008, this federal extension was expanded to provide up to 7 additional weeks of unemployment benefits." For more on unemployment in Massachusetts, see Mass. Law About Unemployment.

Guide to Massachusetts Evidence

The Supreme Judicial Court issued the final Guide to Massachusetts Evidence today, and "recommends" its use. While not officially rules of evidence, "The Massachusetts Guide to Evidence assembles existing Massachusetts evidence law in an easy-to-use document organized similarly to the Federal Rules of Evidence," according to the press release.

The Guide is linked from our Mass. Rules of Court page.

Tractors on the Road

The Boston Globe reported yesterday that a provision in the Massachusetts Dairy Farm Revitalization Act (St.2008, c.310) allows farm tractors to travel up to ten miles on roads. The limit had formerly been two miles. The new law, St.2008, c.310, s.7 amends MGL c.90, s.9.  

The change had largely gone unnoticed because of the language used (or not used) in the amendment. The law had read: "A tractor... may be operated without such registration upon any way ... between one-half mile and two miles if said tractor, trailer or truck is used exclusively for agricultural purposes and the owner thereof maintains in full force a policy of liability insurance." 

The amendment reads: "Section 9 of chapter 90 ... is hereby amended by striking out, in line 18, the word “two” and inserting in place thereof the following number:- 10. "

Unless you are closely following a given bill's progress through the legislative process,  sections like this one are easy to miss.

Identity Theft Regulation Implementation Delayed

The Office of Consumer Affairs and Business Regulation announced Friday that the effective date of  201 CMR 17 would be delayed. The implementation of the regulations designed to protect individuals' privacy was delayed "to provide flexibility to businesses that may be experiencing financial challenges brought on by national and international economic conditions." 

New deadlines:

• "The general compliance deadline for 201 CMR 17.00 has been extended from January 1, 2009 to May 1, 2009.
  
• The deadline for ensuring that third-party service providers are capable of protecting personal information and contractually binding them to do so will be extended from January 1, 2009 to May 1, 2009, and the deadline for requiring written certification from third-party providers will be further extended to January 1, 2010. 
  
• The deadline for ensuring encryption of laptops will be extended from January 1, 2009 to May 1, 2009, and the deadline for ensuring encryption of other portable devices will be further extended to January 1, 2010."
  

Small Businesses May Be Liable for Employment Discrimination

Last month in Thurdin v. SEI Boston, 452 Mass. 436 (Oct. 24, 2008), the Mass. Supreme Judicial Court held that an employee of a business with fewer than six employees (who is thus unable to sue under MGL c.151B) can sue for sex discrimination under a provision of the the Massachusetts Equal Rights Act (MGL c.93, s.102).

This case and more information on employment discrimination are linked from Mass. Law About Discrimination.

New Child Support Guidelines

The Administrative Office of the Trial Court has released new Child Support Guidelines which will take effect on January 1, 2009. They have released a press release, the Guidelines, a worksheet, a chart and the Task Force Report.
The new guidelines will appear soon on our Child Support page, which will continue to maintain the link to the old ones.

When to turn the heat on...

This is the time of year when we try SO hard to keep the furnace off as long as possible. More sweaters and blankets, less oil and gas. At work, the heating guidelines kick in on October 15th. See the minimum heating guidelines from the Office of Labor and Workforce Development. In residential settings for tenants, it starts on September 15th. See the guidelines from the CMR on page 8 of this document. We have more info on our page on Employment Hours and Conditions. And check our page on Heating for home heating assistance info.

New Identity Theft Regulations

We've updated Mass. Law About Identity Theft to include a new regulation, 201 CMR 17, and new Executive Order #504.

The regulation, which takes effect Jan. 1, 2009, requires those who keep personal information about individuals to meet certain minimum security standards for both paper and electronic records. One provision, for example, requires all personal data on laptops or other portable devices to be encrypted. The executive order requires state agencies to take similar security precautions.

New Regulations to Allow Civilian Flaggers

The Executive Office of Transportation has issued new regulations, 701 CMR 7, to allow the use of civilian flaggers instead of police details at some road construction sites. The regulations will become effective upon publication in the Mass. Register on October 3, 2008.

While the new regulations have engendered some controversy (see, for example, the Boston Globe's Unions Lose on Police Details), a report by the Executive Office gives the following results for a survey done in 1995 of all fifty states: "Forty state DOTs replied to the survey with thirty indicating that they used a combination of road flaggers and police details, and ten indicating that they exclusively used road flaggers. Massachusetts was the only state exclusively using police details."

Much more information is available from the Executive Office of Transportation's Road Flaggers and Police Details page.

Potty Parity Law Applies to Everyone

Today's Boston Globe reports that some school districts in the state with high schools under construction don't want to comply with the state's "potty parity" law, 248 CMR 10.10(18), which sets out the number of toilets required for men and women at public facilities so that everyone has approximately the same wait time to use the facilities. 

While the regulations clearly set out the number of toilets required for stadiums (1 per 30 women, 1 per 60 men), the Globe reports that "many architects - as well as the plumbing engineers they consult, and municipal plumbing inspectors - had considered school athletic fields to be extensions of school buildings, not separate stadiums." But the state plumbing board disagrees, and is applying the same law to everyone. The regulations do not include exceptions for size of facility or number of days per year it is used. 

Great News for Worcester!!

Chief Justice for Administration & Management Robert A. Mulligan today announced that the Trial Court has signed a ten-year lease to relocate the Worcester Law Library to 184 Main Street -- diagonally across from the new Worcester Trial Court. Construction on the new location begins this week and is expected to take 5 months. For more information, see the CJAM's Press Release at http://www.mass.gov/courts/press/pr090808.html.

State Withdraws Lead Jewelry Regulations

The much-disputed regulations that limited lead levels in children's jewelry, 105 CMR 650 amendments, have been withdrawn by the Department of Public Health following enactment of a new federal law, PL 110-314, sec.101, that sets lead limits for children's jewelry. They say, "Under this legislation, children's jewelry must meet a total lead content standard of no more than 600 ppm as of February 14, 2009, with reductions to follow. Massachusetts' long-sought objective of better protecting children from dangerous levels of lead in children's jewelry will thus be achieved nationally. Given the pre-emptive nature of the federal legislation, the Department of Public Health now withdraws its model children's jewelry regulations."

More information on lead paint rules and regulations is available at Mass. Law About Lead Paint.

Laws by Popular Name

One of the hazards of doing legal research electronically is that if your exact search terms are not in the document you need, you won't find it. Since many laws and regulations are known by a popular name, like the lemon law or Megan's law, they can be hard to locate. To help the researcher, our site includes a table of Massachusetts Laws by Popular Name, compiled by librarians. The table includes entries such as bottle bill, Jessica's law, spite fence, and Title 5. It also includes links to cases or law review entries when appropriate, such as the listings for Duquette waiver and Ginsberg formula for alimony. The newest addition is Yolanda's Law, signed last week, which improves children's mental health treatment in Massachusetts.

Gifts to Doctors Limited

On August 10, 2008, Gov. Patrick signed St.2008, c.305, which limits the gifts pharmaceutical companies can give to health care providers. According to the Boston Globe, the law bans "certain types of gifts such as sports tickets and free travel, and requires that pharmaceutical and medical device-making firms publicly disclose gifts worth more than $50."

"The new law also provides $25 million to promote electronic medical record-keeping in doctors' offices, requires the state university to graduate more primary care doctors, and gives regulators the power to hold hearings when health insurers want to raise premiums."

New Guardianship Petition

Earlier this week, the Mass. Probate and Family Court released a new form for Guardianship Petition (CJ-P 110). The new form requires more detailed information, and furthers the objectives of the new medical certificate required with all guardianship requests.

According to the press release, " This new petition is designed to protect proposed wards and to ensure that judges have the information they need in order to craft a guardianship, if appropriate, that interferes with an individual’s personal liberty only to the extent necessary... Petitions for limited guardianship rather than full guardianship are encouraged, if possible, in order to fully protect the proposed ward’s individual autonomy and personal liberty interests." The new form will be required effective September 1, 2008.

Jessica's Law and Statutory Rape

On July 24, Gov. Patrick signed a modified "Jessica's Law," St.2008, c.205, which provides for minimum mandatory sentences for certain sexual crimes against children.

One of the changes in the law refines statutory rape laws. It still remains a crime for anyone of any age to have sex with a child under 16 under MGL c.268, s.23, but Jessica's Law has added a new MGL c.268, s.23A, which provides a 10-year minimum sentence for statutory rape in the following instances:

1. The child is under 12 and the defendant is more than 5 years older
2. The child is between 12 and 16 and the defendant is more than 10 years older
3. The defendant is a mandatory reporter under MGL c.119, s.21

More information on sex crimes and their consequences is available at Mass. Law About Sex Offenders.

2008 Unemployment Handbook is Now Online

The 2008 DUA Service Representatives' Handbook is available online from Mass. Legal Services. This handbook is invaluable for those dealing with unemployment claims and includes:

• "Able and available"
• "Suitable work"
• Voluntary leaving
• Discharge-suspension-conviction
• Other pay and benefits
• Special determinations (includes aliens and school employees among others)
• General determinations
• Procedural instructions
• Monetary consideration

This and many more sources are linked from Mass. Law About Unemployment.

Mass. City and Town Bylaws

Today we've added links to bylaws from twenty more Massachusetts towns to our list of city and town bylaws available on the web, bringing the total to over 250. There are over 350 cities and towns in Massachusetts, though, so if you know of bylaws available on the web that we've missed, please let us know!

1913 Law Repealed

Within the past hour, Gov. Patrick signed S.800 repealing the 1913 law (MGL c.207, s.11-12) that barred couples from marrying in Massachusetts if that marriage was prohibited in their home state. The law had stopped same-sex couples from nearly all other states from marrying here. Because the bill included an emergency preamble, same-sex couples from other states can begin marrying in Massachusetts immediately. Well, almost immediately. There is a three-day waiting period in Massachusetts (MGL c.207, s.19) which can be waived in some circumstances (MGL c.207, s.30). See Mass. Law About Marriage for links to more information and forms.

Mass. Comes Closer to Allowing Out-of-State Same-Sex Marriage

On Tuesday, the Massachusetts House voted 119-36 to pass S.800, which repeals the 1913 law forbidding out-of-state same-sex couples from marrying here. The measure had been approved by the state Senate earlier this month, and Governor Patrick is expected to sign it this week. Because the House approved an emergency preamble to the measure, the change will take effect as soon as the Governor signs the bill.

Guidelines on Personal Identifying Data in Court Records

The Supreme Judicial Court is soliciting comments on Proposed Interim Guidelines for the Protection of Personal Identifying Data in Publicly Accessible Court Documents through September 19, 2008. "The proposed Interim Guidelines are intended to prevent the unnecessary inclusion of certain personal identifying data elements in publicly-accessible documents filed with or issued by the courts, in order to minimize the opportunity to use such documents for identity theft or other improper purposes."

SJC Adopts "Loss of Chance" Doctrine

In two cases decided today, Matsuyama v. Birnbaum and Renzi v. Paredes, the Supreme Judicial Court announced that patients can recover for a reduction in the chance of survival due to medical malpractice. "Where a physician's negligence reduces or eliminates the patient's prospects for achieving a more favorable medical outcome, the physician has harmed the patient and is liable for damages. Permitting recovery for loss of chance is particularly appropriate in the area of medical negligence. Our decision today is limited to such claims."

Damages are to be measured by the "proportional damages method." "Applying the proportional damages method, the court must first measure the monetary value of the patient's full life expectancy and, if relevant, work life expectancy as it would in any wrongful death case. But the defendant must then be held liable only for the portion of that value that the defendant's negligence destroyed."

Access to and Sealing of District Court Records

The District Court has issued a revised version of A Guide to Public Access, Sealing & Expungement of District Court Records. This is a publication we have long loved in the law libraries for its clarity in explaining which court records are available to the public and which are not. Unfortunately, it does not explain the process of access or what information the researcher needs to provide in order to access records. The sections on sealing and expungement are also clearly written, well annotated, and include forms.

Census Won't Count Same-Sex Marriages

As information professionals, we have to lament a decision by the Census Bureau, as reported in the Washington Post, to deliberately misreport same-sex marriages in the 2010 census. According to the article, same-sex couples in Massachusetts and California who are legally married and who report themselves as married will have their answers changed to "unmarried" and their children will be considered children of single parents.

Whatever your views on same-sex marriage, statistics are a critical resource, both now and in the future. Accurate numbers can only enhance a conversation on a topic, and can aid historians and other researchers in understanding a given era. Surely, the Census Bureau could find a way to report accurate statistics on the number of married same-sex couples, while still fulfilling their legal obligations under federal laws which do not acknowledge such marriages. Perhaps a separate category on the census form could address both concerns.

Dog Racing Ban Can Appear on Ballot

Yesterday, in Carney v. Attorney General, the Supreme Judicial Court upheld Attorney General Martha Coakley's decision to certify a ballot question on dog tracks in Massachusetts. The court said that although there are only a few dog tracks in Massachusetts, the question is not barred as a "local" question. "That the present economic realities of the industry might make this prospect [of additional tracks] unlikely to materialize is irrelevant; the proposed law would change the legal status of dog racing Statewide." Further, track owners "have no compensable property interest in their racing licenses." The Boston Herald reports that "if approved, the move would ban dog racing as of Jan. 1, 2010."

Senate Votes to Repeal 1913 Law

According to the Boston Globe, the Massachusetts Senate has voted to repeal the 1913 law (MGL c.207, s.11-12) that prohibits out of state same-sex couples from marrying here if their marriage is prohibited by their home state. The House is expected to vote on the measure this week, and Governor Deval Patrick has promised to sign the bill repealing the law if it reaches his desk.

No Pre-Marriage Benefits for Same-Sex Couples

In Charron v. Amaral, the Supreme Judicial Court yesterday denied a pre-marriage right of consortium to a same-sex couple who would have been married had the law allowed it, and did marry when permitted to do so. This is in keeping with Massachusetts caselaw that draws a clear distinction between married and unmarried couples. The court is unwilling to recognize a "right to recover for loss of consortium by a person who has not accepted the correlative responsibilities of marriage." (Feliciano v. Rosemar Silver Company).

While recognizing that the couple in this case did not have the option of marrying, the court explained that the Goodridge decision did not say that "people in same-sex, committed relationships would be considered married before they obtained a marriage license." Also acknowledging the "discriminatory effects the marriage licensing statute had," the court maintained that to allow recovery in this case "could open numbers of cases in all areas of law to the same argument," which they were unwilling to do.

More information is available at Law About Same-Sex Marriage and Law About Unmarried Couples.

New Child Protection Law

Yesterday, Governor Patrick signed a new law, An Act Protecting Children in the Commonwealth (H4905), which provides significant changes to child abuse and prevention law in Massachusetts. Some highlights:

• The Department of Social Services will now be called the Department of Children and Families.
• A new Office of the Child Advocate has been created within the Governor's Office with broad powers to investigate "critical incidents," defined as "(a) a fatality, near fatality, or serious bodily injury of a child who is in the custody of or receiving services from the executive office of health and human services or 1 of its constituent agencies; or (b) circumstances which result in a reasonable belief that the executive office of health and human services or 1 of its constituent agencies failed in its duty to protect a child and, as a result, the child was at imminent risk of, or suffered, serious bodily injury."
• Provides criminal penalties for "harboring" a ward of the state, but provides a defense "if the defendant concealed or harbored a child in the reasonable good faith belief that the child would be at risk of physical or sexual abuse if the child returned to his custodial residence."
• Improves college benefits for children in foster care.
• Increases penalties for failure of mandated reporters to report abuse.

More information on the new law is available from MassLive.com. More information on child abuse laws in Massachusetts is available at Mass. Law About Child Abuse and Neglect.

Unemployment Benefits Extended

Just days after the federal government passed a law extending unemployment benefits (Title IV of PL 110-252, Supplemental Appropriations Act of 2008), "Governor Deval Patrick on Tuesday authorized Massachusetts to accept federal funds to extend unemployment benefits for up to a total of 39 weeks under a new “Extended Benefits” program," according to a press release from the Governor's Office. The extension becomes effective next week. "The Division of Unemployment Assistance will be notifying potentially eligible claimants by mail after the program begins on Monday July 7. At that time, more information and future updates about the extended benefit program will be posted on the DUA website."

Middlesex Law Library

The Middlesex Law Library is open at the new location today. Their new phone number is 781-939-2920. Drop by to see the new space, and greet old friends. Directions are here. The facility is in the temporary Superior Courthouse in Woburn at 200 Trade Center.

New Law Library to Open in Woburn June 23

The Middlesex Law Library will reopen in its new location at 200 TradeCenter in Woburn on Monday June 23, 2008 at 8:30 am. The directions are here. The library is on the third floor.

All the services you were accustomed to utilizing in Cambridge will be available, including Westlaw, Lexis, and borrowing privileges, with the added benefit of plenty of free parking. Please stop by to greet the staff!

Teen Employment Rules

Mass. Attorney General Martha Coakley is promoting an outreach program on teen employment, including a website for teens, LaborLowdown, a fact sheet for parents, and other materials. Since these sources rarely provide citations to the laws themselves, and since we are often asked "where does it say that...", we've created a new page, Law About Child Labor. This page provides links to sources that summarize the many overlapping state and federal laws, but also links to forms and to the laws themselves.

Maternity Act may apply to men

In a surprise announcement, MCAD Commissioner Martin B. Ebel reports that the Commission will now apply the Massachusetts Maternity Act in a gender neutral manner. The groundbreaking decision of Goodridge v. Dept. of Public Health, was one of the reasons cited. The MCAD's website still reflects the old position that the law applies to women only. The commissioner promised that it will be changed to reflect the new interpretation. For more information, see our page on Maternity Leave.

Rule 1:28 Opinions Now Available Online

The Massachusetts Appeals Court announced yesterday that all unpublished decisions issued pursuant to Rule 1:28 since February 25, 2008 are now available under Unpublished Decisions at MassReports.com. They are "searchable by docket number, release date, party name, and word or phrase."

The structure of the site means you'll have to search them separately from any other cases. Right now, the site has three main sections:

• Slip Opinions, for opinions from the last two weeks,
• Opinion Archive, for opinions from the last 6-7 years, not including the current slip opinions, and
• Unpublished Decisions, for Rule 1:28 decisions.

The content does not overlap, so a thorough search would require searching all three.
Also, remember that cases from 1939-date (and thousands of older cases too!) as well as cases from v.1-v.238 Mass. Reports are also available online at no charge. All of these are linked from Mass. Court Cases.

Oceans Act of 2008

It was announced today that the Governor signed into law the Oceans Act of 2008. According to the Governor's office the legislation "will require Massachusetts to develop a first-in-the-nation comprehensive plan to manage development in its state waters, balancing natural resource preservation with traditional and new uses, including renewable energy." The law was prompted in part, by a report by the Pew Commission on Oceans in 2003 entitled "America's Living Oceans."

Middlesex Law Library Closed for Move

Effective Tuesday, May 27, 2008, the Middlesex Law Library in Cambridge will be closed as staff prepares for the move to our new location at 200 Trade Center, 3rd floor in Woburn. Please check back at this site for our official opening date in Woburn.

Lead Jewelry Regs May Be Delayed

Amendments to 105 CMR 650 regulating the sale of toy jewelry were to become effective June 13, 2008, but there has been some concern over the ability of companies to comply with the requirement of two different types of lead testing. According to today's Boston Globe, implementation may be delayed three months to provide additional time for the new testing, believed to be the "strictest in the nation." More information on this issue is available at Mass. Law About Lead Poisoning and Control.

Stay current on US Code

The Legal Information Institute as Cornell has launched RSS feeds for each title of the US Code. Do you practice Bankruptcy law? Get a feed to title 11. Tax law? Stay current with a feed on title 26. Immigration law? Get the updates to title 8.
Each of the 50 titles to the US Code has a link for updates. Very nice.

Law About Bullying

We've added a new page, Mass. Law About Bullying and Cyberbullying to bring together available resources on the topic.

New Independent Contractor Advisory

Massachusetts Attorney General Martha Coakley has issued a new Advisory on the Massachusetts Independent Contractor/Misclassification Law. This new advisory, which supersedes all previous advisories on the topic, covers the history of the law, the three-prong test for determining status, actions constituting violation of the law, and enforcement guidelines. More information on the classification of employees is available at Mass. Law About Independent Contractors.

Help for Homeowners Facing Foreclosure

Beginning May 1, 2008, homeowners facing foreclosure have 90 days to cure a default, under M.G.L. c. 244, s.35A, passed last November. According to a press release from Attorney General Martha Coakley and Governor Deval Patrick, "starting tomorrow, a foreclosing lender must provide a notice of delinquency to the borrower and then provide 90 days to cure the delinquency. Previously, homeowners were only entitled to 30 days notice, and the lender did not have to give the homeowner an opportunity to pay the arrearage, cure the default, and avoid foreclosure."

One key provision of the new law is that "a mortgagor shall not be required to pay any charge, fee, or penalty attributable to the exercise of the right to cure a default," including "attorneys' fees relating to the mortgagor's default that are incurred by the mortgagee." Keep in mind, though, that late fees and per-diem interest payments may still be required.

More information and other resources are available at Mass. Law About Foreclosure.

Voter ID Requirement OK

Yesterday, in Crawford v. Marion County Election Board, 553 US __ (2008), the US Supreme Court upheld an Indiana requirement that voters show government-issued identification at the polls. In a 6-3 split, the justices issues four separate opinions. The main opinion was written by Justice Stevens, joined by Chief Justice Roberts and Justice Kennedy, holding "we cannot conclude that the statute imposes "excessively burdensome requirements" on any class of voters." In a concurring opinion, Justice Scalia, joined by Justices Thomas and Alito, believed that the burden of requiring identification was minor, and the court need not consider "individual impacts" of a "general burden."

Justice Souter, joined by Justice Ginsburg, dissented, stating that some voters would certainly be disenfranchised. "A State may not burden the right to vote merely by invoking abstract interests, be they legitimate, or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed." In a separate dissent, Justice Breyer wrote, "I believe the statute is unconstitutional because it imposes a disproportionate burden upon those eligible voters who lack a driver’s license or other statutorily valid form of photo ID."

The decision does not compel all states to require identification; it merely permits states to do so. According to the Boston Globe, "in Massachusetts, the ruling is expected to do little in reversing long-held beliefs among many Democratic leaders that mandating voters to show IDs at the polls will disenfranchise many, particularly the elderly and the disabled."

More information on voting issues is available at Mass. Law About Elections and Voting.

SJC Clarifies Child Enticement Law

In two decisions released today, Comm. v. Disler and Comm. v. Filopoulos, the Supreme Judicial Court has interpreted the Child Enticement Law, MGL c.265, § 26C to require the Commonwealth to affirmatively prove intent to lure an underage individual. The decisions hold, in part:

1. "The statute surely does not prohibit specific words. It also does not ban anyone from communicating with adults or minors about sexual topics, even through indecent language." "What the statute does require in addition to enticing words or gestures..., is that the person who entices does so with the intent to violate one or more of the enumerated criminal statutes."
2. It is "of no consequence that [the "child" with whom the defendant was communicating] was not a real person, because 'factual impossibility is not a defense to a crime.'"
3. "The Commonwealth is required to prove beyond a reasonable doubt, as an element of the crime of child enticement, that the defendant intended that his advances be directed to an underage person. " "This approach would not require that the Commonwealth prove that the defendant knew the exact age of the child. However, the defendant could not be found guilty unless the Commonwealth proves that his intention was to direct his sexual advances to an underage individual, i.e., an intent to do a criminal act. Intending to have consensual sexual relations with another adult would not provide the requisite criminal intent, even if it turns out that the object of the defendant's advances was in fact a child."

Earliest Mass. Reports Now Online

Volumes 1-238 of Mass. Reports are now available full-text on the web, thanks to the scanning efforts of the Google Books Project. Unfortunately, the search interface is a challenge, so to make them easier to find, we've created a page of Early Mass. Reports which links to all the volumes we have been able to find. Volumes are in PDF format and can be dowloaded or searched. You can also choose to view (but not dowload) a text version.

We could not find them all, so if you are able to locate any of the volumes we haven't linked, please let us know.

Triple Damages for Unpaid Wages

Yesterday, a new law (St.2008, c.80) mandating triple damages for violation of the weekly wage law was enacted after Gov. Patrick failed to sign or veto it. The governor had sent a letter to the Senate asking that the bill be amended to allow some judicial discretion in these cases, but the Senate declined to include the amendments.

Many believed that MGL c.149, s.150 already required triple damages in cases of failure to pay wages or overtime, but in the 2005 case, Wiedmann v. The Bradford Group, 444 Mass. 698, the Supreme Judicial Court held that a judge's award of triple damages under chapter 149 section 150 for a violation of the weekly wage law, was discretionary, not mandatory. In response, the legislature passed this law, including a section which states "This act is intended to clarify the existing law and to reiterate the original intention of the general court that triple damages are mandatory."

For reaction from labor and business, see articles in the Boston Herald and Boston Globe. More information on payment of wages and wage violation complaints is available at Mass. Law About Wages.

New Booster Seat Law

On Friday, Governor Patrick signed St.2008, c.79, An Act Relative to Child Passenger Safety. Under the new law, effective May 1, 2008, "No child under the age of eight and measuring less than fifty-seven inches in height shall ride as a passenger in a motor vehicle on any way unless such child is properly fastened and secured, according to the manufacturer’s instructions, by a child passenger restraint." The standards for child safety seats are set out in 49 CFR 571.213.

We've had questions about whether the law applies to children over eight years old but less than 4' 9". You can see from the excerpt above that the requirement is for children who are both under eight AND less than 4'9".

You can find more information on issues related to driving at Mass. Law About Traffic Violations.

AG Unhappy with Auto Insurance Info.

Attorney General Martha Coakley has called the Division of Insurance's website on auto insurance rates "misleading" in a press release issued this week. She encourages residents to visit her site instead. The Attorney General's site includes a "Consumer Warning" about the InsureMass site. It says, in part, "Please be aware that this site does not allow for accurate price comparisons for the majority of consumers. The prices you will be offered by insurers will most likely be significantly different than the prices you see on this website. "

Consumers should be able to rely on information from official state sources, and when two are in direct conflict, it makes the job of making an informed decision that much more difficult. Hopefully the two agencies can cooperate and put together a source of information that is helpful and reliable. In the meantime, we'll link to both from Law About Auto Insurance.

Probate Court Forms

The Probate Court has amended its Uniform Practice XXXIII to again require Financial Statements and Child Support Guidelines Worksheets be printed on colored paper. Both short and long Financial Statements should be printed on pink paper. The Child Support Guidelines Worksheets should be printed on yellow. According to their press release, "requiring that the forms be printed on colored paper will assist our staff and judges in identifying the forms in the case folder and that they remain unavailable for public inspection." The change is effective April 7, 2008.

This and other Mass. court rules can be found at Mass. Rules of Court, and the forms at Mass. Legal Forms.

Parent Education Program Changes

Earlier this week, the Mass. Probate and Family Court issued Standing Order 4-08, which replaces Standing Order 1-03, Parent Education Program Attendance. According to the press release, "The change to the Standing Order requires that the parties pay $80.00 to the provider in advance of the class to offset the cost of materials and facilitators. This fee may be reduced to $5.00 upon a party submitting a copy of his or her allowed Affidavit of Indigency and Request for Waiver, Substitution or State Payment of Fees and Costs. Parties have paid $65.00 to the providers since 2003." The new order is effective April 7, 2008.

This and other Probate Court Standing Orders are available at Mass. Court Rules.

New Medical Certificate in Guardianship

The Mass. Probate and Family Court announced today a new form for medical certificate in guardianship cases which must be used beginning April 15, 2008. "While the form is long, it will provide judges with the information they need in making the important decision of whether to interfere with the fundamental liberty interest of an individual to make decisions for themselves, in whole or in part, by entering a guardianship decree."

Thanks to Leanna Hamill's Massachusetts Estate Planning and Elder Law blog for bringing the new form to our attention last week. She writes, "The old form was 2 pages, and consisted mostly of blank lines, which left it up to the doctor filling the form to come with what information he or she thought was needed. The new form is 8 pages, and requires much more detailed information from the doctor. It also requires the doctor to specify whether a limited guardianship or a full guardianship is needed. "

Regulating Smoking at Home

Last week, Boston Globe Magazine took on the issue of regulating smoking in multi-unit housing in Snuffing Out Puffing Neighbors. The article explores the move toward restricting smoking further in Massachusetts, and suggests that landlords already have options. “Many landlords are under the impression that it is illegal to ban smoking in apartments. Not so, says Eileen Sullivan, director of policy and planning for the state's Tobacco Control Program: ’We see it as similar to the issue of whether to allow pets.’” More on all aspects of smoking regulation is available at Mass. Law About Smoking.

Boston Limits Student Roommates

On Wednesday, the Boston Zoning Board unanimously approved a measure that limits undergraduate students in the city to no more than four roommates per apartment. The new limits, effective March 13, 2008, apply only to "full-time undergraduate students at a post-secondary educational institution" and do not apply to graduate students or to other unrelated groups of people.

• Text of amendments
• Boston Zoning Code (does not include amendments)

According to the Boston Globe, "opponents, many of them property owners and college students, said the occupancy limit violated their property rights and unfairly singled out a specific group of people. " Supporters, on the other hand, "said it would help prevent landlords from turning single- and two-family homes into high-rent, multibedroom apartments for large numbers of students. "

More information on landlord-tenant issues is available at Mass. Law About Landlord and Tenant.

Heat Shutoff Protection Extended to May 1

Under 220 CMR 25, utilities cannot shut off heat to certain qualified households between November 15 and March 15. This year, according to their press release, "the Massachusetts Department of Public Utilities (DPU) has asked each of the state’s electric and natural gas companies to extend until May 1 the current moratorium on winter utility shut-offs."

This extension is voluntary, however, and while in previous years all utilities have complied with the request, they are under no obligation to do so. You should check with your utility or the DPU to determine whether your utility has agreed to the deadline extension. According to the DPU Legal Division, "so far, two major companies, KeySpan (including National Grid) and NSTAR have agreed to extend the moratorium."

More information on winter heating help and other heating requirements is available at Mass. Law About Winter Heating.

Cutting Down Neighbor's Trees is Costly

Last week, the Mass. Appeals Court issued an opinion in Glavin v. Eckman, 71 Mass. App. Ct. 313 (2008), a case in which Martha's Vineyard property owners and their tree contractor cut down ten mature trees on a neighbor's property to improve their own view of the ocean. The court upheld a jury award granting the wronged property owner the $30,000 replacement cost of the trees, rather than damages measured by the worth of the timber or diminution of the property's value.

"The trees represented decades of natural growth that could not easily be replicated. Moreover, any diminution in market value arising from the wrongful cutting was of less importance than was the destruction of the special value that the land and its stand of mature oak trees held for Glavin." "A plaintiff may opt for either the value of the timber cut or the diminution in value of his property as the measure of damages under the statute, ... and when the latter measure does not fairly measure his damages, he may permissibly opt for restoration cost damages. "

With damages tripled under G. L. c. 242, § 7, the award came to $90,000 plus interest. According to the Boston Herald, measuring damages by replacement cost in such a case is "an apparent first" and contractor Fragosa's "lawyer John Amabile said he expects to appeal to the state Supreme Judicial Court, hoping to stop Glavin from 'putting ($120,000) in his pocket for 10 scrub oaks.'"

Much more information on tree issues is available at Mass. Law About Neighbors and Trees.

Privilege Logs

Effective April 1, 2008, parties who make a claim of privilege or protection in response to a discovery request for documents will be required to prepare a "privilege log" under new Civil Procedure Rule 26(b)(5) issued last week. The log must contain "the respective author(s) and sender(s) if different; the recipient(s); the date and type of document, written communication or thing not produced; and in general terms, the subject matter of the withheld information."

According to the Reporter's Notes accompanying the rule, "The requirement of a privilege log applies to a claim of privilege or right to protection asserted by a party only. This rule imposes no obligation to provide a privilege log on the part of a non-party who withholds privileged information after service of a subpoena for the production of documentary evidence under Rule 45(b), although a court would appear to have authority to order preparation of a log."

The full text of all Massachusetts civil rules is available at Mass. Rules of Civil Procedure.

Those pesky 1:28 opinions

Mass. Lawyers Weekly reports the following change in the treatment of Massachusetts Appeals Court decisions decided pursuant to Rule 1:28:

"The Appeals Court announced today that an unpublished opinion issued pursuant to Rule 1:28 may be cited for its persuasive value but not as binding precedent."

Criminal Penalties for Drag Racing

Beginning Tuesday, February 26, drag racing in Massachusetts will be a criminal offense for most drivers, rather than a civil motor vehicle infraction, under revised MGL c.90, s.17B. Currently, penalties are a $100-500 fine and 30-day license suspension for a first offense, and a $200-1000 fine and 60-day suspension for a subsequent offense. Under the new law, penalties are more serious. Even a first offense carries the possibility of up to 2 1/2 years in jail or a fine of up to $1,000, in addition to license suspension.

Oddly, the new provisions do not apply to those with a junior operator's license or learner's permit. Previously, the penalties had been much harsher for these newer drivers than for experienced drivers, but when the legislature amended the law, they did not amend the paragraphs dealing with new drivers. As a result, drag racing remains a civil infraction for drivers with a junior operator's license or learner's permit. These newer drivers continue to face high fines, long suspensions and license reinstatement fees, but no possibility of jail time.

New Indigency Standards

The US Department of Health and Human Services issued new Federal Poverty Guidelines in the January 23, 2008 Federal Register, which will affect the determination of indigency in Massachusetts courts.

One definition of indigency under MGL c.261, s.27A is "a person whose income, after taxes, is one hundred and twenty-five per cent or less of the current poverty threshold...", and so the Supreme Judicial Court has put a helpful memo on their site which provides a table of 125% of the current poverty threshold by family size. This is linked from Affidavit of Indigency and Related Documents, which also includes requisite forms "used to request waiver, substitution or payment of court fees and court costs by the Commonwealth."

New Auto Insurance Rates

For many years, Massachusetts has operated under regulations that set prices for automobile insurance in the state. Beginning this week, consumers will renew policies under new "managed competition" regulations, 211 CMR 79, for policies effective on or after April 1, 2008. Under the new scheme, insurers can set their own rates (although they will still need to be approved by the Division of Insurance).

This means that consumers may want to shop around for the best rate. The Division of Insurance has a new website, InsureMass, that helps people do just that. The site "shows consumers the range of prices and discounts they may qualify for and tells them how to contact insurance companies and agents directly for quotes. Consumers can easily generate a list of sample premiums by providing their zip code, number of years licensed, the type of vehicle they drive, their driving records and coverage levels." "You will be asked 6 basic questions in order to gather facts that all insurers consider when calculating automobile insurance rates. The tool will use this information to produce a list of sample premiums from each company."

More information on the new automobile insurance rules is available at Mass. Law About Automobile Insurance.

Public Library of Law

FastCase, an online subscription database, has just launched the Public Library of Law, which they claim is the "largest free law library in the world." Through an interface that looks eerily like Google, you can search all US Supreme Court cases, Federal Circuit Court cases back to 1950, and state court cases back to 1997. Outstanding! They also claim to offer access to statutes and regulations, but the links for Massachusetts are actually to the General Court's site for the statutes, and to our site for regulations and court rules.

The service requires free registration and is clearly a marketing opportunity for FastCase, their paid service, but the coverage for cases is excellent and the interface easy to use.

In addition, Massachusetts cases from 1939-date are available online for no charge at Masscases.com.

Source for Government Info

We have a chat service through which we can direct you to information about Massachusetts law, but we are delighted to point you to a complementary service for Federal and state government information: Government Information Online (GIO). According to their site, "Through Government Information Online (GIO) you can ask government information librarians who are experts at finding information from government agencies of all levels (local, state, regional, national international) on almost any subject from aardvarks to zygomycosis."

So if you have a question about Massachusetts law, ask us! And if you have a question from another jurisdiction, or about sources of government information other than law, ask GovtInfo.