Full-Text Nolo Books Online for Free

While our library card holders have access to full text of all Nolo titles from home, now Nolo is offering free access for everybody to a select group of books "in their entirety for free." Wow! Here's the list:

• 8 Ways to Avoid Probate
• Beat Your Ticket
• The eBay Business Start-Up Kit
• Every Dog's Legal Guide
• Everybody's Guide to Small Claims Court
• Fiance and Marriage Visas
• The Foreclosure Survival Guide
• Living Together
• Renters' Rights
• Save Your Small Business
• The Sharing Solution
• Your Rights in the Workplace

Nolo says, "We're making these books available online for free because we want to make the valuable information they contain as widely available as possible. Look for more books to be added in the future. We hope you find them useful!"

Recreation vehicle laws stiffened for operators

New operator rules have gone into effect for drivers of off highway vehicles. Chapter 202 of the acts of 2010 adds age limits and other restrictions, and stiffens fines for alcoholic beverage use.
Operators under the age of 18 are required to take a safety course. No one under 10 may operate a vehicle under any circumstances. Persons between the ages of 10 to 14 are only allowed to use the vehicles in a sanctioned and supervised race, or to prepare for the race under adult supervision. All vehicles must now be registered with the Massachusetts Environmental Police.
Fines have been increased for recklessly operating an off road vehicle.
For this and other laws about motor vehicles, see our page, Law about Automobiles.

Contingent fee rule changed by SJC

Rule 1.5 of the Rules of Professional Conduct has been significantly amended. The rule governs what attorneys can charge and collect for contingent fees, and took effect March 15. The rule includes two sample fee agreements. While attorneys are not required to use either form, if their form is materially different from, or adds to the suggested forms, those differences should be explained to the client for their approval in writing.
For the entire Rules of Professional Conduct, and other helpful information for and about attorneys, see our page Law about Lawyers.

New Homestead Law Effective Today

The new law, St.2010, c.395,  provides some very significant changes to past homestead law, including:

• Automatically protects up to $125,000 in home equity without filing
• Protects up to $500,000 for those who file for homestead protection
• Allows both spouses to file
• Clarifies that there is no need to re-file after refinancing. For those with a pre-existing homestead, NCLC and MLRI recommend: "Every homeowner who has refinanced his/her mortgage in the last several years should consider recording a new homestead declaration since many refinancing mortgages contained a waiver of homestead rights.")
• Permits homestead protection for homes kept in trusts
• Permits homestead protection for manufactured homes

We've updated our Law About Homestead page to provide links to information and new forms.

New: Law About Gender Identity and Expression

After the recent issuance of two new executive orders on protection for gender identity, we've had more questions about transgender issues and rights, so we've created a new page: Massachusetts Law About Gender Identity and Expression, which includes state laws, cases, local ordinances, websites and more.

New Statewide Records Retention Schedule

The state's Records Retention Board issued a new edition of the Statewide Records Retention Schedule in January. We've added it to our page on Freedom of Information, and created a new section,  Record Retention Schedules, which brings together requirements for municipal and state governments.

Pending Legislation Re: Craft Brewers

We've had some questions about a pending bill to change the legal relationship between craft brewers and wholesalers. The current law is MGL c.138, s.25E. The bill  to amend it, H1897, seeks to define "small brewer relationships" and to carve out different requirements for small brewers than for others. Another bill, H1871, also addresses the relationship between brewers and wholesalers, but does not distinguish small brewers from large. You can find an explanation of the bills at Masslive.com.

Mass. Law About Unions and Collective Bargaining

In light of the news out of Wisconsin, we've added a page on Massachusetts Law About Unions and Collective Bargaining. Here you can find Massachusetts laws and regulations, as well as federal sources and other websites on the topic.

Unemployment Insurance Rates Frozen

Last week, Gov. Patrick signed St.2011, c.2 (added by S00008), which freezes employer contributions to unemployment insurance. "Without this legislation employers would have seen an average increase of $228 per employee,” said Governor Patrick. “We want to encourage a positive climate for employers and by signing this bill we are helping to position the state for continued economic recovery.”  See the Governor's Press release for more information about the law. For more on unemployment in Massachusetts, see Mass. Law About Unemployment.

Conscience Clause Regulations Updated

The Department of Health and Human Services has issued new regulations amending 45 CFR Part 88 to continue to allow health care workers to refuse to perform abortions or sterilizations, but to "rescind[] those parts of the 2008 Final Rule that were unclear and potentially overbroad in scope. ...The Department partially rescinds the 2008 Final Rule based on concerns expressed that it had the potential to negatively impact patient access to contraception and certain other medical services without a basis in federal conscience protection statutes." The new regulations will appear in the February 23, 2011 Federal Register and will be effective 30 days after publication. More information is available from the Washington Post.

Transgender Equal Rights

Earlier this month, Governor Patrick issued two executive orders, 526 and 527, which extend the state's equal rights protections to gender identity and expression, effective February 17, 2011. The orders cover state workers and employees of private companies that contract with the state. These and all other executive orders are available at Mass. Executive Orders. More information is available at Boston.com.

Update to File a Police Report Online post

More Massachusetts Police Departments with Online Police Reporting access!

Amherst Police Department
Darmouth Police Department
Northampton Police Department
Pittsfield Police Department
UMASS (Amherst) Police Department
Yarmouth Police Department

Again, if you know of any other police departments with online reporting for minor incidents, we'd like to hear from you.

File a Police Report Online

According to yesterday's Patriot Ledger, Weymouth has joined three other Massachusetts towns-- Fall River, Natick and Peabody-- in allowing citizens to file police reports online. "Capt. Joseph Comperchio, the department’s executive officer, said the new system will free up officers’ time to focus on more serious crimes instead of having to write reports on traffic complaints, lost property and other cases in which the perpetrator is not known....Comperchio said it’s not intended to be used to report crimes with a known suspect or in emergencies, and officers will still respond whenever a caller requests one." Here are links to the four towns' reporting systems:

• Fall River
• Natick
• Peabody
• Weymouth

If you know of other towns with online reporting systems, please let us know!

Drunk Driving License Suspensions Clarified

In DiGREGORIO vs. REGISTRAR OF MOTOR VEHICLES, issued today, the Appeals Court ruled that when relying on an out-of-state drunk driving conviction to impose a license suspension, the suspension begins with the date of conviction, not the date the registry found out about it. G.L. c. 90, § 24 (1)(c )(3) reads in part: "the registrar shall not restore the license or reinstate the right to operate to such person, unless the prosecution of such person has terminated in favor of the defendant, until eight years after the date of conviction." According to the court, "Courts must follow unambiguous statutory language "unless 'following the Legislature's literal command would lead to an absurd result, or one contrary to the Legislature's manifest intention.'"" More information is available at Boston.com.

Limited Assistance Representation in the District Court

Last week, the District Court issued Standing Order 1-11: Limited Assistance Representation and Substitute Counsel Pilot Project. "The Standing Order provides the parameters for limited assistance representation in the District Court Department" and also "addresses court proceedings where an attorney substitutes or “covers” for an attorney who has already filed a general appearance on behalf of the litigant but is not present at that particular court proceeding."
"This Standing Order shall be in effect in all divisions of the District Court Department for a period of one year, beginning January 25, 2011."
The order was issued along with a form for Notice of Limited Appearance.

Snow and Ice

In response to questions about the responsibility to shovel, and given that this winter refuses to let up, we've added a page: Mass. Law About Snow and Ice. We have other pages on related topics as well: Law About Potholes,  Law About Real Estate, Law About Roads and Streets, and, on the winter theme, Law About Winter Heating.

Burial at Sea

Today's Boston Globe had an interesting article on burial at sea, which inspired us to add information on the topic to our Law About Burial, Cremation and Funerals. There you can find Massachusetts laws and regulations on burial and cremation and web sources helpful to consumers.

Historical Massachusetts Cases

We've added two old titles to our Massachusetts Cases page:

• Thacher's Criminal Cases: Reports of Criminal Cases Tried in the Municipal Court of the City of Boston before Peter Oxenbridge Thacher, Judge of that Court from 1823-1843. 
• Quincy's Reports: Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay Between 1761 and 1772. By Josiah Quincy, Junior. Printed From His Original Manuscripts In The Possession Of His Son, Josiah Quincy, And Edited By His Great-Grandson, Samuel M. Quincy. With an Appendix Upon the Writs of Assistance.

There are also many interesting old documents on our Mass. Historical Legal Documents page, including the Mayflower Compact, the Body of Liberties, the law that outlawed Christmas, and more.

Massachusetts Speed Limit Laws

For the sake of clarity, we've split off speed limit information from Law About Traffic Violations into its own page: Massachusetts Law About Speed Limits. Here we collect Massachusetts laws, regulations and websites on speeding.

Restaurants Have 3 Weeks to Comply With New Food Allergy Requirements

105 CMR 590.003(B)(17) includes new requirements for restaurants under the Food Allergy Awareness Act, MGL c.140, s.6B. In addition to all of the obligations of the "person in charge" under the 105 CMR 590.003(B)(1)-(16), the new regulation has added:

"The person in charge shall demonstrate this knowledge by compliance with the federal 1999 Food Code and, by being a certified food protection manager who has shown proficiency of required information through passing a test that is part of an accredited program recognized by the Department. The areas of knowledge include:
...
"(17) No later than February 1, 2011:
(a)  Describing FOODS identified as MAJOR FOOD ALLERGENS and describing the symptoms that MAJOR FOOD ALLERGENS could cause in a sensitive individual who has an allergic reaction; and
(b) Ensuring that employees are properly trained in food allergy awareness as it relates to their assigned duties."

Uniform Probate Code Not Effective Until Jan. 2012

In the supplemental budget signed last week, St.2010, c.409, s.23, the effective date of the Massachusetts Uniform Probate Code (St.2008, c.521, s.44) was changed from July 1, 2011 to January 2, 2012.

Providing for Your Pets After You Die

According to the MSPCA, Governor Patrick has signed H1467: An Act Relative to Trusts for the Care of Animals,  This law, MGL c.203, s.3C will allow pet owners to create trusts to care for their pets. Some key provisions:

• "Unless the trust instrument provides for an earlier termination, the trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor's lifetime, upon the death of the last surviving animal."
• "A court may reduce the amount of property held by the trust if it that amount substantially exceeds the amount required for the intended use and the court finds that there will be no substantial adverse impact in the care, maintenance, health, or appearance of the animal or animals." 

More information on animals and the law can be found at our Mass. Law About Animals.

New Law Protects More Property from Debt Collection

Governor Patrick signed S2557 last Friday which increases the value of property exempt from execution listed in  MGL c.235, s.34, effective in April. Here are some examples:

• Cost of Utilities:
  
  • Old: up to $75/ month
  • New: up to $500/month
• Automobile:
  
  • Old: up to $700 in value
  • New: up to $7500 in value (or $15,000 for elderly or disabled)
• Cash and Wages:
  
  • Old:  up to $125
  • New: $2,500 in cash or savings or other deposits in a banking or investment institution, wages equal to the greater of 85 per cent of the debtor’s gross wages or 50 times the greater of the federal or the Massachusetts hourly minimum wage for each week or portion thereof

Exemptions for "2 cows, 12 sheep, 2 swine and 4 tons of hay" remain unchanged.

SJC Upholds Ibanez Foreclosure Decision

In US Bank National Association v. Ibanez, 458 Mass. 637, the Supreme Judicial Court today upheld the ruling of the Land Court (MISC 08-384283) regarding the requirement that mortgage holders must be accurately identified in a foreclosure proceeding. "We agree with the judge that the plaintiffs, who were not the original mortgagees, failed to make the required showing that they were the holders of the mortgages at the time of foreclosure. As a result, they did not demonstrate that the foreclosure sales were valid to convey title to the subject properties, and their requests for a declaration of clear title were properly denied."
Specifically, the court held:

1. "Assignments in blank.... identifying the assignor but not the assignee, ... did not constitute a lawful assignment of the mortgages."
2. "In the absence of a valid written assignment of a mortgage or a court order of assignment, the mortgage holder remains unchanged."
3. "A postforeclosure assignment [may not] be treated as a pre-foreclosure assignment simply by declaring an "effective date" that precedes the notice of sale and foreclosure... Because an assignment of a mortgage is a transfer of legal title, it becomes effective with respect to the power of sale only on the transfer; it cannot become effective before the transfer."
4. This ruling will not be prospective in its application. " The legal principles and requirements we set forth are well established in our case law and our statutes. All that has changed is the plaintiffs' apparent failure to abide by those principles and requirements in the rush to sell mortgage-backed securities."

New Professional Conduct Rule on Fees

Massachusetts Professional Conduct Rule 1.5 will be replaced with a new version, amended December 22, 2010 and effective March 15, 2011. You can read about what was changed and why in the committee's original request for comments.

Beyond Financial Aid:

... A Guide to Extra Help for Low-Income Adult Students, was recently added to MassLegalHelp's website. This title fills a critical gap between sources on financial aid and those on public benefits.  "Public programs can offer support, but sometimes the rules about who is eligible for public benefits, such as housing assistance, food stamps, or unemployment insurance, are different for students. This booklet will help you determine which public benefits may be available to you and your family while you go to school." Thanks to the authors Deborah Harris of Massachusetts Law Reform Institute, and Ruthie Liberman from Crittenton Women’s Union for making this available.

New Bicycle Law Effective Tomorrow

MGL c.85, § 11E, governing traffic citations for bicyclists, becomes effective on January 1, 2011. The law provides:

• A cyclist stopped by a police officer must give his name and address.
• A police officer witnessing a traffic violation by a cyclist should use the same procedure (MGL c.90C) in issuing a citation as that for motor vehicles.
• A citation issued will not affect a cyclist's driving record.
• If a cyclist is under 16, the notice may be given to the parent or guardian.

For more information on bicycle laws, see our Mass. Law About Bicycles.

Library Services today

The snow is making for a challenging day. All courts are closed until noon today. We will not be offering online chat service, but feel free to send questions by email, and we will answer them when our staff members are able to get in. Please call ahead before visiting one of our libraries, because conditions can vary quite a bit from one community to another. We're sorry for the inconvenience!

We Had to Look It Up

Today's Boston Globe includes an article on people who "harvest" deer killed in accidents, and includes the statement "Massachusetts law requires that the driver of the car get first dibs on the deer." Really? Yes, really.
321 CMR 2.04 provides that an "eligible person" has a right to the deer. Eligible is defined as:

The driver of the motor vehicle which collided with a salvageable deer, or any passenger in such vehicle, provided that such person shall be domiciled in Massachusetts.

If there is no eligible person, then indeed the deer may go to "any approved organization or to any person domiciled in Massachusetts..."

New Homestead Law

Last week, Gov. Patrick signed a significant new homestead law, St.2010, c.___ (S2406), which will take effect next March. Here are some highlights:

• Automatically protects up to $125,000 in home equity without filing
• Protects up to $500,000 for those who file for homestead protection
• Allows spouses to both file-- currently only one may file
• Clarifies that there is no need to re-file after refinancing
• Provides coverage for homes kept in trusts

Helpful information on the new law can be found at Boston.com and the Lowell Registry of Deeds blog. More on homesteads is available at our Mass. Law About Homestead. 

What Can The Law Libraries Do For You?

Brown Bag Lunch at the State Library, Room  442 State House, tomorrow from noon - 1:30. According to the State Library's blog:

Marnie [Warner, Law Library Coordinator] will be speaking about what the law libraries can do for you, asking the audience what they would like to see the law libraries provide and will also talk about the law.gov initiative and the Massachusetts Library Access to Justice program. The law.gov initiative ensures public access to the law and the Mass Library Access to Justice program facilitates access to legal information at public libraries.

To register for the Brown Bag, please go to: http://www.surveymonkey.com/s/VYKB3QV 

You may also do so by calling Reference directly at 617-727-2590 or by e-mailing us at reference.department@state.ma.us.

Child Custody and Parental Relocation

Yesterday, in Smith v. McDonald, the SJC decided a case in which an unmarried mother moved out of state with her child before paternity was adjudicated, and without the permission of the putative father.  The court held:

Permission to relocate, however, is not required when a child has only one legal parent. Such is the case for a nonmarital child prior to any proceedings to determine paternity or allocate custodial rights. When the paternity of a nonmarital child has not yet been established pursuant to G.L. c. 209C, § 2, the mother is the child's only parent. The putative biological father has no legal rights that need to be protected by the court, and the mother may relocate freely with the child.

Other cases on relocation in different circumstances can be found at our Law About Child Custody: Moving Away.

DNA Indictment Tolls Statute of Limitations

Yesterday, in Comm. v. Jerry Dixon, the Supreme Judicial Court ruled that the return of a DNA indictment tolled the 15 year statute of limitations in a rape case. In so holding, the court wrote:

Where a general John Doe indictment, bereft of any particularity, must fail as generally anonymous, the converse is true of a DNA indictment: it prevails as precisely eponymous.

Unlike the general John Doe indictment in Connor, supra at 575, which merely expressed a grand jury's intention to accuse "anyone," id. at 578, an indictment of a person identified by a DNA profile accuses a singular and ascertained, but simply unnamed individual. Probably more than proper names or physical characteristics, DNA profiles unassailably fulfil the constitutional requirement that an indictment provide "words of description which have particular reference to the person whom the Commonwealth seeks to convict." 

 The court also addressed the concern that the tolling of limitations may have an adverse affect on defendants' ability to present an adequate defense, and stated that any remedy for potential inadequacies lay with the legislature:

We are not unmindful of the arguments of the defendant and others that DNA indictments may vitiate some of the important public policy purposes that our statutes of limitations serve.

In the event of an especially delayed trial, the defendant has other available remedies beyond challenging the sufficiency of the indictment.

It is in the first instance for the Legislature to determine whether these safeguards, albeit limited in nature and rare in application, are inadequate to protect putative defendants indicted by their genetic identity, but unable to be identified by name before the expiration of G.L. c. 277, § 63. If so, they may revisit the statutory scheme that we conclude permits the practice.

New SJC Rule 1:23

The SJC has approved new Rule 1:23, effective January 1, 2011. The new rule governs "Attorney General Approved Modifications Of Certain Gift Instruments Under G.L. C. 180A, Section 5(d)." This and other Massachusetts court rules can be found at Mass. Rules of Court.

District Court Appellate Division Slip Opinions

We've added slip opinions from the Appellate Division of the District Court Department for November 10 and November 15 to District Court Slip Opinions.

Alcoholic beverage regulations for caffeinated drinks

The Massachusetts Alcoholic Beverages Control Commission has released a regulation relating to the recent uproar over FourLoco. The regulation bans the sale of alcohol adulterated with caffeine.
The FDA has also responded by warning manufacturers that their products contain an unsafe food additive. They have issued a press release and letter to manufacturers. The CDC (Center for Disease Control and Prevention) has issued a fact sheet on the dangers of alcohol and caffeine.
The drink has already been banned in individual states, but the FDA action likely means national prohibition.

Homestead act will be changing...

There is a bill on the Governor's desk, waiting for his signature that will change the homestead act significantly. Senate 2406 will likely take effect 90 days after approval by the governor. Dick Howe, from the Northern Middlesex registry of deeds has a great summary of the changes here.
We will try to follow it's progress, and the expected changes to the forms. We will link to it from our homestead page when the bill becomes a law.

MCAD Fact Sheet on CORI and Employment

The Mass. Commission Against Discrimination (MCAD) has issued a fact sheet on the use of criminal record information (CORI) by employers under the new law effective this month. It provides detailed guidance on who is covered by the law and what they may and may not ask employment applicants.

More information on CORI and employment is available at Mass. Law About Criminal Records.

Free Legal Advice for Veterans

The Mass. Bar Association is offering free legal advice by phone to veterans on Wednesday, Nov. 17, 2010 from 5:30 p.m. – 7:30 p.m. The number to call is (877) 686-0711.

"Volunteer attorneys will answer a range of legal concerns including benefits, divorce, child support, employment and landlord/tenant issues. The Veterans Dial-A-Lawyer is provided as a public service of the MBA with the financial support of the Massachusetts Bar Foundation, the philanthropic partner of the MBA. The MBA has partnered with the Massachusetts Department of Veterans’ Services on the program."

If you are reading about...

Needham High School soccer team and hazing, try our Bullying page for the link to the statute on hazing.
Massachusetts students math scores? See out page on education and on MCAS
Wondering about working on Veteran's Day? Holiday work and pay requirements are here.
Check our page of over 150 topics for more helpful information about things happening in your life.

Calorie Reporting Requirement Rescinded

This is old news, but since we missed it, we're guessing some of you may have too. 105 CMR 590.009(G) formerly "required certain chain restaurants to post calorie information next to the names of food items they sell. The regulations were to take effect on November 1, 2010, but were explicitly preempted by federal law (PL 111-148, s.4205) on March 23, 2010."

The requirement was removed from 105 CMR 590 on October 1, 2010 in Mass. Register #1166.

New Guardianship Rules and Forms

The Probate and Family Court has issued two new rules and two new forms for guardianship, effective November 16, 2010:

• Standing Order 2-10: Medical Certificate Affidavit
• Uniform Practice XXII: Medical Certificate (Guardian-Conservator). "The title and practice were amended to allow a nurse practitioner to complete a Medical Certificate."
• Medical Certificate for Guardianship or Conservatorship. Incorporates the changes to Uniform Practice XXII.
• Medical Certificate Affidavit. Not yet available at the Probate and Family Court site.

New Dangerousness Standard for Pretrial Detention

St.2010, c.256, s.125, effective this week, allows prosecutors to seek pretrial detention under MGL c.276, s.58A for anyone charged with a felony for possession of a firearm under MGL c.269, s.10 (a), (c) or (m) (with some exceptions).

The law was enacted after the SJC ruled last year in Comm. v. Young, 453 Mass. 507, that unlicensed possession of a firearm did not qualify "as a predicate offense pursuant to G. L. c. 276, § 58A, which allows the Commonwealth to seek pretrial detention of individuals accused of certain serious offenses."

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

"Ban the Box" Effective Today

Except in limited circumstances, Massachusetts employers may no longer ask about criminal history on initial job applications, under MGL c.151B, s.4 (9-1/2) as added by St.2010, c.256, s.101. 

The new law reads:

It shall be an unlawful practice: 

"9½. For an employer to request on its initial written application form criminal offender record information; provided, however, that except as otherwise prohibited by subsection 9, an employer may inquire about any criminal convictions on an applicant’s application form if: (i) the applicant is applying for a position for which any federal or state law or regulation creates mandatory or presumptive disqualification based on a conviction for 1 or more types of criminal offenses; or (ii) the employer or an affiliate of such employer is subject to an obligation imposed by any federal or state law or regulation not to employ persons, in either 1 or more positions, who have been convicted of 1 or more types of criminal offenses."

A brief history of "ban the box" is available from The Defenders Online. A clear explanation of the Massachusetts law and practical tips for implementation can be found in McDermott, Will & Emery's newsletter. 

Free Lexis Webinars This Month

The Lexis interface is changing in November. We are pleased to offer free webinars to our patrons highlighting what's new.

Webinars will be offered on:

• Wednesday, November 10th at 2:00
• Friday, November 12th at 11:00
• Monday, November 15th at 10:00

Whether you are a novice user or experienced researcher, these Webinars are designed to help you be more productive and efficient. Webinars will be held via WebEx® - a voice and web conferencing solution where you attend the classes right from your own computer desktop! All you need is a phone and internet access. Classes will be taught by Gail B. Lenson, Esq. – LexisNexis Government Consultant for the Massachusetts Courts.

To attend, please email gail.lenson@lexisnexis.com with the date and time of the class you would like to attend. Class size is limited so to insure your spot, please respond quickly. Detailed instructions on how to participate in the Webinar will be sent upon confirmation of enrollment.

Questions? Feel free to contact us.

SJC Recusal Rule Effective Today

SJC Rule 1:22 Motions to Recuse is effective today. This new rule provides a procedure for recusal of a Supreme Court Justice from a full court case, including a method for review if the Justice whose recusal is sought denies the original motion.

"This rule applies only to full court cases. Recusal rulings in single justice cases are, and will continue to be, reviewable in the regular course on appeal from any adverse final judgment in the single justice case."

8th Edition of Mass. Building Code Requires Extra Step in Research

Unlike earlier editions of the building code, which stood on their own, the 8th edition of the Mass. Building Code "is comprised of the International Building Code 2009 (IBC) and a separate package with Massachusetts amendments to chapters of the IBC." You can't get both documents at one site. Users will need to go to the International Code at the International Code Council, and then read it in conjunction with the 8th edition Massachusetts amendments at the state's site.
The state advises: "User tip:  First find a topic location in the IBC table of contents.  Then come back to this screen, open the appropriate MA amendment chapter and scroll to the specific section to see if there are amendments that apply."
The 8th edition is effective concurrently with the 7th edition until February 6, 2011, when the 7th edition's effectiveness expires.

Free legal e-books to download

We ran across a couple of free e-books which you can load on nearly any device, including phones and PCs. Amazon is offering the Multistate Professional Responsibility Exam (MPRE) published by Kaplan as well as Constitutional Law: Core Concepts and Key Questions, also by Kaplan. They will also work on Kindles, iPads, and Blackberrys.
We don't endorse any specific products, but these might be helpful additions to your library of resources.

New Federal Gift Card Regulations: Why They Matter in Mass.

Federal Regulations issued under the CARD act became effective on August 22, 2010. These regulations, 12 CFR pt. 205, provide many protections for consumers with credit cards, bank accounts and gift cards. In one key provision, the regulations require that a gift card may not expire for at least five years. Massachusetts law, though, already requires that gift cards don't expire for at least seven years (MGL c.200A, s.5D). So why do we need to care?

According to the Mass. Attorney General, cards issued by national banks are bound by the Federal rules, not the state law. "State law does not apply to gift cards issued by a national bank, even though these cards may be issued by an entity other than the bank.  For instance, Simon Mall Gift Cards do not follow the seven year rule and also charge fees, because the cards are issued in conjunction with a national bank."

The new Federal regulations not only define a minimum time before expiration, but also limit dormancy, inactivity, or service fees. This is all very good news for Massachusetts consumers purchasing mall gift cards.

More information on gift cards in Massachusetts is available at Mass. Law About Shopping and Returns.

Preliminary Injunction Issued in Stem Cell Research

US District Court for the District of Columbia Judge Royce Lamberth issued a preliminary injunction yesterday in the case of Sherley v. Sebelius, US Dist Court - DC, Civ. No. 1:09-cv-1575, August 23, 2010. The injunction was granted "to enjoin defendants from implementing the [NIH] Guidelines [for Human Stem Cell Research] because the Guidelines allow federal funding of ESC [Embryonic Stem Cell] research, which involves the destruction of embryos."

"Because ESC research requires the derivation of ESCs, ESC research is research in which an embryo is destroyed. Accordingly, the Court concludes that, by allowing federal funding of ESC research, the Guidelines are in violation of the Dickey-Wicker Amendment."  Further, "it is in the public interest to enjoin defendants from implementing the Guidelines because the Guidelines allow federal funding of ESC research, which involves the destruction of embryos."

More information on stem cell research in Massachusetts is available at Mass. Law About Stem Cell Research.

Reverse Mortgages, Tenants in Foreclosure, Right to Cure and More!

On August 7, Governor Patrick signed S.2407: An Act to Stabilize Neighborhoods, which brought significant changes in a number of laws.

Reverse Mortgages (Sections 2-5): provides additional protections for consumers within certain income guidelines considering reverse mortgages. Most portions are effective in November. The required counseling will not be effective until the end February 2012. See Law About Reverse Mortgages for more info.

Tenants in Foreclosed Buildings (Section 6). New MGL c.186A was added which makes it more difficult to evict a tenant from a foreclosed building and provides specific guidance to both tenants and financial institutions faced with the situation. This law is effective immediately. See Law About Tenants in Foreclosed Buildings for more info.

Right to Cure in Foreclosure (Section 7). MGL c.244, s.35A was amended effective immediately to provide a 150-day right to cure under certain conditions. Section 8 reverts the law back to a 90-day right to cure in 2016. See Law About Foreclosure for more info.

Mortgage Fraud (Sections 9-11A).  Amends MGL c.266, s.33-34, and adds new MGL c.266, s35A and c.277, s.62C, effective immediately.

Abandoned Property Registry (Sections 12-13). Creates a new Mass. Abandoned Property Registry (MAP). Rules and regulations required for the registry must be adopted by  December 5, 2010.

Food Rules

One of the final bills of the last legislative session signed by the Governor was an act relative to school nutrition. Chapter 197 of the acts of 2010 encourages the purchase of locally grown produce, meats and seafood at state colleges and universities, as well as all state agencies.
It expands some no bid aspects of the uniform procurement act for local foods.
It requires elementary schools to "provide for instruction in...nutrition and exercise" and establishes reporting requirements for nutrition and wellness programs.
There will be training in behavioral health, screening and referral for obesity and type 2 diabetes. It attempts to provide access to foods that comply with nutritional standards for sale and in vending machines, and requires the sale of fruit and vegetables, calls for access to free water, and limits the use of fryolators.
Related web page : Education.

Snow and ice in July

The SJC has released a decision changing the way liability is measured for clearing snow and ice on real property. The longstanding rule in Massachusetts, in which a property owner is not liable in tort for failing to remove a natural accumulation of snow and ice, was unique in this country, and was referred to as the "Massachusetts rule." There has been a distinction between natural and unnatural accumulations of snow, as well a distinctions between duty to different types of parties, such as tenants, invitees, licensees and trespassers.
Now in keeping with common and statutory law across the country, property owners are now responsible for removal of unsafe conditions.
"We now will apply to hazards arising from snow and ice the same obligation that a property owner owes to lawful visitors as to all other hazards: a duty to "act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk." Young v. Garwacki, 380 Mass. 162... This introduces no special burden on property owners. If a property owner knows or reasonably should know of a dangerous condition on its property, whether arising from an accumulation of snow or ice, or rust on a railing, or a discarded banana peel, the property owner owes a duty to lawful visitors to make reasonable efforts to protect lawful visitors against the danger..."
To read the case, look for Papadopoulos vs. Target Corporation.

Serving Self-Represented Litigants Guide Provides Welcome Permission to Help

The Trial Court's new Serving the Self-Represented Litigant: A Guide By and For Massachusetts Court Staff does a great job of explaining what court staff may and may not do. Often court employees had been so leery of providing legal advice that they were reluctant to provide much guidance at all, particularly to the self-represented. This publication provides specific guidance on what is and isn't OK, and should free staff to answer some basic questions, particularly about forms. It says, for example:

"Providing court forms and instructions on how to fill out those forms is an important part of the job of court staff...Court staff may answer questions about how to complete court forms, including where to write particular types of information, and may explain what unfamiliar legal terms mean.Court staff also can check forms for completeness and provide information about specific problems on the form and how to resolve them."

That stands in marked contrast to activities that are not permissible for court staff, such as "Advising a court user whether to bring a particular case or problem before the court, Suggesting which of several procedures or options a court user should follow, " and the like.

This understanding of the important role of court staff is exciting and should improve the interaction for both the self-represented litigant and the staff person who is now free to provide the reasonable assistance needed.

Fall River Law Library on the Move

The Fall River Law Library is closed for the move to the new Fall River Justice Center at 186 South Main Street in Fall River. The library will re-open in the new location on July 26. In the meantime, nearby libraries in Taunton and New Bedford are open and happy to serve you!

Lead Paint Rules Tightened; Training Deadline Eased

Yesterday, amendments (75 FR 24802-24819) to the EPA's Lead Renovation Repair and Painting Program regulations (40 CFR 745) went into effect. These amendments close the "opt-out" provision, which had allowed homeowners to opt out of new safety requirements if there were no children under 6 or pregnant women in the home. There is no longer an opt-out option, and all pre-1978 homes are now covered.

The regulations also have strict training and certification requirements, but the EPA has eased the training deadline somewhat. In a press release yesterday, the agency said:
"Because of concern that contractors in some areas may be having difficulty accessing training classes, EPA recently announced that it is providing renovation firms and workers additional time to obtain training and certifications to comply with the new lead rules. EPA will not take enforcement action for violations of the rule’s firm certification requirement until October 1, 2010, and will not enforce certification requirements against individual renovation workers if they apply to enroll in certified renovator classes by September 30, 2010 and complete the training by December 31, 2010."

See our Law About Lead Poisoning and Control for more information on state and federal requirements.

Alcohol Sales Can Begin at 10 on Sundays

A provision of the Massachusetts state budget passed at the end of June (H4800) amended MGL c.138, s.33 and s.33B to allow liquor sales at restaurants to begin at 10 a.m. on Sundays, effective immediately. Previously, sales were generally prohibited before noon, although s.33B did allow sales to begin at 11 with permission of the town. According to the Boston Globe, "[Phantom Gourmet's Dave] Andelman said the law will spark a booming brunch culture and especially help restaurants near Fenway Park and Gillette Stadium before 1 p.m. games."

Arizona also just passed amended their law regarding liquor sales on Sundays, but in their case, the new law (HB2123) allows sales to begin at 6 a.m., rather than 10 a.m. According to a news report, sports bars are among those happiest with the change. "It's amazing that when we open at 9 a.m. (in August), we'll be able to serve alcohol," said Doug Collins, owner and operator of The Tavern on Mill. "Once you get into football season, some games start early, so you have people in here waiting for the 10 o'clock hour to strike."

Public's Right to Free Access to Court Decisions

From Nash v. Lathrop, 142 Mass. 29 (1886):

"The decisions and opinions of the justices are the authorized expositions and interpretations of the laws which are binding upon all the citizens. They declare the unwritten law, and construe and declare the meaning of the statutes. Every citizen is presumed to know the law thus declared, and it needs no argument to show that justice requires that all should have free access to the opinions, and that it is against sound public policy to prevent this, or to suppress and keep from the earliest knowledge of the public the statutes or the decisions and opinions of the justices. Such opinions stand, upon principle, on substantially the same footing as the statutes enacted by the Legislature.

"It can hardly be contended that it would be within the constitutional power of the Legislature to enact that the statutes and opinions should not be made known to the public. It is its duty to provide for promulgating them..."

Update, Postponed: Older Oil Burners Must be Upgraded to Prevent Leaks

A law enacted over a year ago (St. 2008, c.453) requires homeowners with oil burners installed before 1990 to make a small change to their systems to prevent leaks. Originally, the law was to take effect July 1, 2010. On June 24, 2010, the law was amended, so that while insurance coverage requirements are still effective July 1, 2010, the requirements for homeowners don't take effect until September 30, 2011.

According to the Mass. DEP, under the Homeowner Oil Heating System Upgrade and Insurance Law,  "Owners of 1- to 4-unit residences that are heated with oil must already have or install an oil safety valve or an oil supply line with a protective sleeve...  Installation of these devices must be performed by a licensed oil burner technician."  "It is important to note that heating oil systems installed on or after January 1, 1990 most likely are already in compliance because state fire codes implemented these requirements on new installations at that time."

The good news is that the law also requires insurers who offer homeowner's insurance to also offer coverage for oil leaks to those who have certified that they have made the repairs or are exempt from the requirement.

More information, including a diagram of necessary repairs, is available at the Mass. Department of Environmental Protection site.

New Lead Paint Regulations

The Division of Occupational Safety has filed amendments to 455 CMR 22 to become effective July 9, 2010. "These amendments, which establish safety standards for renovation, repair and painting work that disturbs lead paint in target housing and child-occupied facilities built before 1978, parallel similar federal EPA requirements that became effective on April 22, 2010 under the “Renovation, Repair and Painting Rule” (RRP Rule), 40 CFR 745.80 – 745.92...   At this time, EPA has the exclusive authority to administer and enforce the RRP Rule.  DOS will be filing an application shortly with EPA, seeking authorization to administer and enforce the lead safety standards for renovation, repair and painting work set forth in 454 CMR 22.00, in lieu of the federal standard being enforced by EPA in Massachusetts.  DOS will request that this authorization be approved as close as possible to July 9, 2010, to coincide with the effective date of the amendments to 454 CMR 22.00."

More information on lead paint regulation is available at Mass. Law About Lead Poisoning and Control.

Pledge of Allegiance in Public Schools

The Boston Globe reported today on a student effort to create a school policy that would enable the reciting of the Pledge of Allegiance by students. M.G.L ch. 72, § 69 requires displaying the national flag and reciting the Pledge of Allegiance; however, a court opinion in 1977 (Opinion of the Justices to the Governor) held that teachers and students can not be disciplined for failing to do that; and an even earlier 1943 U.S. Supreme Court decision, West Virginia State Board of Education v. Barnette, said that requiring students to salute the flag and recite the pledge violated the First Amendment.

See Massachusetts Law about Education for more.

Mass. Rules on Admission to the Bar Amended

Supreme Judicial Court Rule 3:01 has been amended effective July 1, 2010. The amendments are in the following sections:

• Section 1: Filing Requirements for Admission
  
  • subsection 1.2: Admission by Motion
  • subsection 1.3: Referral to Board of Bar Examiners
• Section 3: Qualifications for Taking Bar Exam
• Section 6: Admissions on Motion

In addition, the Board of Bar Examiners has a new Rule VI: Foreign Law School Graduates - Requirements for Examination and Admission on Motion effective July 1, 2010.

You can find these and all other Massachusetts court rules at Mass. Rules of Court.

Free Legal Clinics

On June 22, 2010 from 6:00 to 8:00 p.m. at the Stoughton District Court, the Bar Association of Norfolk County will be holding their free legal clinic.

Both the Hampden County Bar Association and the Middlesex County Bar Association also have free legal clinics. These bar associations encourage participants to call them first.

To find more free or low-cost legal advice, see "Find a Lawyer in Massachusetts,"

Social Host Liability

As the season of graduation parties and summer celebrations comes upon us, it is a good time to be reminded that there are penalties for furnishing or serving alcohol to underage guests. M. G. L. ch. 138, § 34 provides a fine of up to $2,000, imprisonment for up to a year, or both.

There is a handy brochure from the Essex District Attorney's Office available, entitled, "Don't Give Alcohol to Kids.

See our Massachusetts Law About Liquor for more information on Liquor Laws.

Calorie Posting Requirements Delayed

Last year the state issued regulations, 105 CMR 590.009(G), requiring food establishments with 20 or more locations within the state to post calorie content of their menu items. Those requirements were to take effect November 1.

But the new Federal health care reform law, PL 111-148,  includes similar requirements (in sec.4205), and the Federal standard will trump the state requirement. The Federal law applies to restaurants with 20 or more locations nationwide, and also to vending machines. Under the Federal law, the Food and Drug administration must propose regulations within a year. It is unclear how long those regulations will take to be finalized or when the ultimate effective date will be.

In the meantime, the state is moving forward to rescind its regulations, according to the Boston Globe.

Mass. Tenants Dealing with Foreclosure

A few years ago, information for tenants in buildings facing foreclosure was hard to come by and somewhat contradictory. Now, though, there are some new laws and a great deal of clarification.

MGL c.186, s.13A, added in 2007 states: "Upon a foreclosure of residential real property pursuant to chapter 244, a tenant, occupying a dwelling unit under an unexpired term for years or a lease for a definite term in effect at the time of the foreclosure by sale, shall be deemed a tenant at will. Foreclosure shall not affect the tenancy agreement of a tenant whose rental payment is subsidized under state or federal law."

PL 111-22, a federal law added in 2009, is called the Protecting Tenants at Foreclosure Act, and applies to 1) buildings with federally-related mortgages,  2) any dwelling or residential property or 3) Section 8 tenancies. A tenant with a valid lease can stay until the end of the lease period, and 90 days' notice must be provided to tenants without leases. There are different protections for Section 8 tenants.

There are also several good web sources with analysis of the laws. The Attorney General's Information for Tenants in Foreclosed Buildings provides straightforward information and links to other sources. Mass. Legal Help's Tenants Facing Foreclosure goes even further, and provides helpful advice on getting your security deposit back. Security deposits can be tricky, because MGL c.185, s.15B(7A) specifically states that security deposit protections do not apply  "to a foreclosing mortgagee or a mortgagee in possession which is a financial institution chartered by the commonwealth or by the United States".

More information on tenants in foreclosure situations is available at our Law About Foreclosure and Law About Eviction pages.

Emergency Response by Utilities

New regulations have been promulgated by the DPU, 220 CMR 19, which address the emergency preparedness of electric and gas companies.

In December 2008, an ice storm in the Fitchburg area left many customers without electricity for weeks. In response, the legislature enacted St.2009, c.133, which provides reporting requirements for electric and gas companies and authorizes the Department of Public Utilities to promulgate regulations " to establish standards of acceptable performance for emergency preparation and restoration of service for electric and gas distribution companies doing business in the commonwealth."

The purpose of the new regulations is to establish:

"(a) standards of acceptable performance for emergency preparation and restoration of service for electric distribution and gas companies; and
(b) requirements for Emergency Response Plans, consistent with the provisions of St. 2009, c. 133, an Act Relative to Public Utility Companies."

Lexis Webinars

We are pleased to offer our patrons four free webinars on Lexis use this month! Classes are online. All you need is a phone and internet access.

LEXIS 101

• How to construct a search using terms and connectors
• Search techniques for finding applicable cases
• How to use Shepard’s® as a research tool

LEXIS 102

• Review using terms and connectors
• Search techniques for finding statutory and regulatory law
• How to search by legal topic

DATES
Wednesday, June 16th

• 2:00 - Lexis 101
• 3:00 - Lexis 102

Tuesday, June 29th

• 11:00 - Lexis 101
• 12:00 - Lexis 102

Whether you are a novice user or experienced researcher, these Webinars are designed to help you be more productive and efficient.
Webinars will be held via WebEx® - a voice and web conferencing solution where you attend the classes right from your computer desktop! All you need is a phone and internet access.
Classes will be taught by Gail B. Lenson, Esq. – LexisNexis Government Consultant for the Massachusetts Courts.
To attend, please email gail.lenson@lexisnexis.com with the date and time of the class you would like to attend. Class size is limited so to insure your spot, please respond quickly.
Detailed instructions on how to participate in the Webinar will be sent upon confirmation of enrollment.

Oil Spill Tragedy - What if it happened here?

Actually, Massachusetts has already had its share of environmental disasters due to oil spills in our ocean waters. The most recent was the Bouchard in 2003, which took place in Buzzards Bay. That spill prompted the enactment of an Act Preventing Oil Spills in Buzzards Bay, which became law last September. However, this April a group of entities connected to the oil transport industry filed suit in U. S. District Court challenging this law. See American Waterways, et al vs. Deval Patrick, as Govenor and Laurie Burt, Commissioner of Mass. Department of Environmental Protection.

Bay state officials are revisiting plans to protect Boston Harbor from future oil spill disasters. According to the Boston Herald, the Boston Harbor plan should be ready by this fall.

As for the Bouchard Buzzards Bay spill, the jury rendered a verdict this April, 2010.

Price Gouging and Water

There has been a lot of talk in the media about price gouging for water in the Boston area during the current water crisis. Attorney General Martha Coakley issued a statement on the issue on Sunday, and Gov. Deval Patrick instructed the Division of Standards to "closely monitor bottled water prices." This led us to wonder what this price gouging law is.

It isn't the AG regulation on price gouging, 940 CMR 3.18, because that regulation applies only to petroleum products. It also doesn't seem to be related to the gubernatorial state of emergency.

Our best guess is that the issue is with the item pricing law, MGL c.94, sections 184B-184E  which requires price tags on the item or on the shelf (with some exceptions). Presumably, a problem may arise where water is marked at one price but being sold for another. The Division of Standards is charged with enforcing "the item pricing law and the unit pricing regulations."

You can find more laws and regulations regarding item pricing at:

• MGL c.6, s.115A Unit Pricing of Packaged Commodities
• 202 CMR 5 Unit Pricing and Checkout Systems
• 940 CMR 3.13 Pricing

Logan's Law: Severely Limits Devocalization of Dogs & Cats

On April 22, 2010, Gov. Deval Patrick signed St.2010, c.82: An Act to Prohibit Devocalization of Dogs and Cats, also known as Logan's Law. The Act stipulates that unless the procedure is done to treat disease, injury or birth defects, there is a substantial penalty. "(b) Whoever performs, or causes to be performed, the surgical devocalization of a dog or cat shall be punished by imprisonment in the state prison for not more than 5 years or imprisonment in a house of correction for not more than 2½ years, or by a fine of not more than $2,500 or by both such fine and imprisonment. In addition to this penalty, the court may order that any person who violates this section shall successfully complete a course of instruction relative to the humane treatment of animals or be barred from owning or keeping a dog or cat or sharing a residence with another who owns or keeps a dog or cat for a period of time as determined by said court. " For more information on animals, see our Law About Animals and Law About Veterinary Practice.

Text of New Court Management Report

We've added the Report of the Court Management Advisory Board to our collection of reports at Mass. Law About the Court System. According to the press release, "The Massachusetts Court Management Advisory Board (CMAB) today called upon the Governor’s office and the state Legislature to enact broad changes to the Administrative structure of the state’s Judiciary, focusing primarily on the Trial Courts and its seven departments.   Citing the “absence of a comprehensive, professionalized, administrative and leadership structure that would enable the Judiciary to full and effectively manage itself," the CMAB recommends legislative changes to several statutes within the court system, including the hiring and tenure practices within the state’s Probation Department."

Welcome to Our New Blog Location!

We're glad you found your way here. The new feed is at http://masslawlib.blogspot.com/feeds/posts/default.

A Real Fish Story

New in 2010 Massachusetts saltwater recreational anglers are now required to register for a saltwater fishing permit. For this year only, the registration is free and is through the National Marine Fisheries Service.

In 2011, the permit fee will be $10 through our state program; whereas the federal program will be charging a permit fee $25. Because Massachusetts has enacted its own registration law, state anglers will be exempt from the higher federal fee next year.

Also exempt will be anglers who are younger than 16, or disabled, or who fish only on permitted for-hire vessels like charters boats, do not have to register in 2010 or obtain a state permit in 2011. Anglers that are 60 years and older will need to obtain a state permit in 2011 but there will be no fee.

Visit the Mass. Division of Marine Fisheries for a Saltwater Permit FAQ

Home Improvement Time

Spring is often the time homeowners embark on home improvement projects. Here are a few new regulations to keep in mind when you start that project:

• 40 CFR 745. Lead Paint. Under new federal regulations effective April 1, 2010,  "contractors performing renovation, repair and painting projects that disturb lead-based paint in homes, child care facilities, and schools built before 1978 must be certified and must follow specific work practices to prevent lead contamination."
• 527 CMR 10.15  Floor refinishing. Effective June 1, 2010, provides strict new guidelines for floor refinishing.

And if you are preparing your home for sale,

• 527 CMR 32  Smoke Detectors. Effective April 5, 2010, details new requirements for smoke detectors with which you must comply in order to sell your home.

The Attorney General has a useful consumer guide to home improvement, and we have links to the home improvement contractor law and regulations, as well as helpful forms and websites, at Law About Home Improvement.

Corporate election contributions in Mass.

The Office of Campaign and Political Finance has issued a statement on the Citizens United decision by the Supreme Court and how it relates to our chapter 55 section 8. The Globe has an analysis here. See our original post here.
In addition, there were changes to local campaign finance laws that went into effect in January. Chapter 28 of the acts of 2009 amended the campaign finance laws, the open meetings laws and the lobbying restrictions. The Office has an overview of how the law is applied in a variety of elections in their newsletter.
And, as always check our pages on Elections and Open Meetings.

Expungement of Criminal Records

Yesterday, in Comm. v. Boe, the Massachusetts Supreme Judicial Court ruled that a judge does not have the authority "to order the Commissioner of Probation (commissioner) to expunge a defendant's record where the criminal complaint was dismissed because its issuance was premised on a mistake." "Massachusetts appellate decisions have construed the unambiguous language of G.L. c. 276, § 100C, as conferring on a judge the authority, in appropriate circumstances, to order sealing, but not expungement, of the probation and court records of dismissed prosecutions." Similarly, in 2002 the court ruled in Comm. v. Gavin G., 437 Mass. 470, that "a Juvenile Court judge lacked the authority to expunge the probation record of a juvenile."

These cases contrast with Comm. v. S.M.F., 40 Mass. App. Ct. 42 (1996), in which expungement was allowed in a case in which the person charged had assumed the identity of a wholly innocent person. "In the unique circumstances of S.M.F., where the deliberate act of prosecution was not against S.M.F., the court concluded that G.L. c. 276, § 100C, was inapplicable, and, therefore, the trial court could invoke its inherent power to expunge the criminal records under the name of S.M.F...Expungement was an appropriate remedy because the facts of the case did not place it within the categories of dispositions contemplated by the sealing statutes--criminal proceedings were never initiated against the "real" S.M.F."

More information on sealing and expungement of criminal records is available at Mass. Law About Criminal Records.

SJC to evaluate foreclosures and Ibanez

In March of 2009, the Land Court held that a foreclosure was invalid because the notice in the newspaper did not list the holder of the mortgage at the time of the notice. The case is U.S. Bank National Association v. Ibanez and the court held that the sale was void as a matter of law. The Boston Globe has a review of the case here.
Since Ibanez, mortgage companies have delayed deals, and title insurance has been difficult to obtain.
This could impact thousands of cases. The hope is that any changes will not be retroactive, calling into question the ownership of homes sold years ago.

Superior Court Standing Orders

We've added Superior Court Standing Orders to our site.

Recent Decisions Impacted by Melendez-Diaz

In Melendez-Diaz v. Massachusetts (129 S. Ct. 2527) the Supreme Court found the introduction of state forensic-lab reports is testimonial evidence requiring the appearance at trial of lab technicians.
Some subsequent decisions:

Commonwealth v. Martinez-Guzman, 76 Mass. App. Ct. 167 Defendant argued that his RMV record was submitted and he did not have a chance to cross examine the employee who signed the RMV record. The Appeals Court found RMV records are maintained independently of any prosecutorial purpose and are therefore admissible in evidence as ordinary business records.

Commonwealth v. Madera, 76 Mass. App. Ct. 154 The Appeals Court affirmed the decision. Madera claimed under Melendez-Diaz that his right to confront the drug analyst was violated. The Appeals Court agreed but decided that the evidence was overwhelming against the defendant. Importantly, the prosecution did not make the reports central to its case and Appeals Court noted they made no mention of the certificates in their closing arguments. Therefore the denial under Melendez-Diaz was not strong enough to overturn the decision.

Commonwealth v. Perez, 76 Mass. App. Ct. 439 (2010) Defendant was convicted of drug trafficking. The judgment was reversed following Melendez-Diaz. Drug certificates were introduced, despite defense objection, and the defendant was not able to cross examine the drug analyst.

Commonwealth v. Rivera, 76 Mass. App. Ct. 304 Ballistic certificates were entered into evidence despite objections by defense. The defendant was found guilty. Appeals Court reversed the decision based on the violation of the defendant’s right to confrontation provided by Melendez-Diaz.

Amended Massachusetts Court Rules

Three Massachusetts court rules were recently amended, effective May 1, 2010.

Mass. Rule of Appellate Procedure 20 "has been amended to require attorneys to include their e-mail addresses, if any, on the front cover of briefs and appendices."

Similarly, Mass. Rule of Civil Procedure 11 "has been amended to require attorneys and unrepresented parties to include their e-mail addresses, if any, on pleadings."

Finally, Mass. Rule of Civil Procedure 10 has a new subsection (e) which states that "The text of any document may appear on both sides of the page."

Access to Justice state and federal issue

The phrase "Access to Justice" has taken on greater import on the state and federal levels this week. The Massachusetts court system has announced a new commission to study issues of the self represented litigant in the state courts. The Globe reports that Harvard Law Professor Lawrence Tribe will be heading a federal commission on Access to Justice focusing on increasing legal access for the poor.
The Trial Court Law Libraries applaud these efforts, and hope to be part of the solutions. Recently a national conference on public libraries and access to justice was held in Texas with a team from Massachusetts in attendance.
We know that our Law by Subject pages, our IM and email reference, and our free document delivery reach thousands of people. Our 17 brick and mortar locations reach thousands more. We look forward to being part of the discussion on access to justice at all levels.

Cinema of Law Film Series Again On Tuesdays in March

Films about the law will be shown in the auditorium of the Berkshire Athenaeum again this year on Tuesdays in March sponsored by the Berkshire Law Library, Berkshire Bar Association and the Friends of the Berkshire Athenaeum. Each of the films in the series, “The Cinema of Law” will be introduced by a member of the Berkshire Bar. No admission will be charged.

Dates, films and speakers are as follows:

•      March 2    The  Devil and Daniel Webster introduced by Attorney Chris Dodig
•      March 9    Philadelphia introduced by Attorney Michael Hinkley
•      March 16     A Man with a Plan  introduced by Register Andrea Nuciforo
•      March 23    Mr. Smith Goes to Washington to be introduced by Hon. Fredric Rutberg

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.

Bullying Legislation Moves Forward

The Joint Committee on Education yesterday voiced their support for H483, An Act Relative to the Prevention of Bullying, together with S228, An Act Relative to Bullying. The bill, which contains provisions that address both traditional bullying and cyberbullying, now moves to the Senate. According to the Boston Globe, "Massachusetts is among less than a dozen states that have not passed a law to prevent bullying - a problem school administrators say has grown more hostile and pervasive in recent years as students harass others via social websites and cellphones equipped with text messaging and cameras."

More information on bullying and the law is available at Massachusetts Law About Bullying.

Help for Haiti

Governor Patrick has put up a web page called Help for Haiti to assist our Haitian community here in Massachusetts and the people of Haiti following the aftermath of the earthquake on Jan. 10, 2010. The page includes information on both how to help and how to get help.

Additionally, Haitian nationals who cannot return to Haiti due to the earthquake may be eligible to apply for Temporary Protective Status (TPS), due to a special 18-month designation by the Department of Homeland Security (DHS) Secretary, Janet Napolitano. For more information, see Temporary Protected Status – Haiti, and the Application for Temporary Protected Status available from the U. S. Citizenship and Immigration Services.

Finally, late last month, Gov. Deval Patrick signed Executive Order 520 which establishes a "catastrophic leave donation program to support Commonwealth employees impacted by the tragedy in Haiti." Under this program,  "Commonwealth employees may donate earned vacation and personal leave to co-workers, who have relatives in Haiti, for the purpose of travel to the country of Haiti, or to care for family members impacted by the recent tragedy in Haiti."

Changes to credit card laws

February 22 marks the effective date of the new federal law regulating credit card disclosure called the Credit Card Accountability, Responsibility, and Disclosure (CARD) Act of 2009. Among other things, the act requires the lender to notify you 45 days before any changes to your terms and conditions. Your monthly credit card bill will include information on how long it will take you to pay off your balance if you only make minimum payments. It regulates the issuance of cards to people under 21, and puts limits on fees for gift cards as well.
The Federal Reserve has more details on the changes with some samples of what kind of information you will see.
See our page on Credit and Banking for related information.

New law extends reach of restraining order.

Massachusetts has a new law extending protection to victims of harassment. The new law, chapter 258E of the General laws is for victims of harassment which are often not persons covered under our existing 209A protective restraining order statute.
The complainant should have experienced 3 instances of harassment which is defined here in section 1 : "...acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property; or (ii) an act that: (A) by force, threat or duress causes another to involuntarily engage in sexual relations; or (B) constitutes a violation of section 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of chapter 272."
This protective order can be issued against people who are not domestic partners or family members. Violations of a protective order are criminal offenses.
An article in the Globe here gives some history to the issue.

Low-Speed Vehicles

Since last July, Massachusetts has had a law (MGL c.90, s.1F-1I, added by St.2008, c.523) which allows operation of low-speed vehicles (those that do not travel more than 25 mph) on certain roads, and also requires registration of those vehicles. Yet, according to Sunday's Boston Globe, only 10 such vehicles have been registered in the state so far. More information on Low-Speed Vehicles is available from the Registry of Motor Vehicles.

Texting banned for commercial bus and truck drivers

Tuesday, the U.S. Dept. of Transportation banned texting by commercial drivers. The regulatory guidance is published in the January 26 Federal Register and relates to 49 CFR 390.17.
Federal employees are banned from texting by an executive order dated October 1, 2009. The DOT also has a web site called Distraction.gov and a blog called The Fast Lane which have other research on these issues.
Massachusetts has yet to ban texting or cell phone use for all drivers. The Federal ban would apply to all commercial vehicles.

Supreme Court rules corporations can participate in elections

The Supreme Court today overturned some elements of the campaign finance laws in Citizens United v. Federal Elections Commission. You might recall this issue arose in 2008 with a film about Hillary Clinton. The 183 page opinion includes four addition opinions concurring and dissenting. The ruling concerns 2 UCS 441(b), contributions by banks, corporations and unions. The decision removes limits on independent expenditures that are not coordinated with candidates' campaigns. It leaves in place a prohibition on direct contributions to candidates from corporations and unions. Disclaimer and disclosure requirements were held to be valid restrictions. For an brief history and analysis from Nina Totenberg, listen here.

Don't forget our Elections page for more elections law.
This could mean our own statute, chapter 55 section 8 is unenforceable.

New "sale" regulations in effect for retailers

The Attorney General's office regulates retail advertising as part of it's consumer protection responsibilities. Some of them include the need to disclose terms in an audible manner and at a speed equal to the other speech in the advertisement. Print ads can't contain important language that is too small, or hard to read due to lack of contrast. They have recently softened the requirements for marking items on sale. Now the stores can mark an item on sale even though the item has been at the reduced price for most of the year. In the past, it had to have been at full price for the majority of the time. The new regulations are here. The regulations also cover "buy one get one free", "if purchases separately" and gifts. The Globe has an overview of the regulations here. For more information check our page on Shopping and Returns, and Consumer Protection.