Information on Juries

We've added two new pages: Law About Juries and Jury Service, and Law About Jury Selection. The first covers the right to a jury, jury service, and the conduct of a jury trial; the second, issues surrounding voir dire and other aspects of jury selection.

"First Complaint" Doctrine Modified

In Comm. v. Aviles, issued today, the SJC announced its intention to modify the first complaint doctrine.

"Until now, we have considered the first complaint doctrine to be an "evidentiary rule"...  The admission of evidence in violation of such evidentiary rule, that is, in violation of the established parameters of the first complaint doctrine, will always be deemed error. ... Where a defendant has objected to the admission of the evidence, an appellate court then will determine whether the error was prejudicial, ... and where a defendant has not raised an objection, an appellate court will determine whether the error created a substantial risk of a miscarriage of justice. ...

" ...Rather than considering the first complaint doctrine as an evidentiary "rule," it makes greater sense to view the doctrine as a body of governing principles to guide a trial judge on the admissibility of first complaint evidence. .... The judge who is evaluating the facts of a particular case is in the best position to determine the scope of admissible evidence, keeping in mind the underlying goals of the first complaint doctrine, our established first complaint jurisprudence, and our guidelines for admitting or excluding relevant evidence. ... Once a judge has carefully and thoroughly analyzed these considerations, and has decided that proposed first complaint evidence is admissible, an appellate court shall review that determination under an abuse of discretion standard.

"The modification we announce today in no way should be construed as a relaxation or erosion of our first complaint jurisprudence. ... The importance of maintaining a balance between the interests of a complainant (who still may be a child) "in having her credibility fairly judged on the specific facts of the case" and the interests of a defendant "in receiving a trial free from irrelevant and potentially prejudicial testimony" cannot be overstated. "

Thinking of an Exotic Pet?

Before you buy that exotic animal online, be sure to check out Massachusetts laws on the subject. The best place to start is the Division of Fisheries and Wildlife's Keeping Captive / Exotic Wildlife, which summarizes the applicable laws. Those wanting more detail should read the following sources of primary law:

• MGL c.131, s.23:  Licensing requirements for fish, birds, reptiles, mammals and amphibians
• MGL c.131, s.77A: Wild canine and felid hybrids
• 321 CMR 2.12: Artificial Propagation of Birds, Mammals, Reptiles, and Amphibians.
• 321 CMR 9: Exotic Pets Exemption List. Lists "species which are exempt from the licensing provisions of MGL c. 131, § 23. This list includes wild (i.e., non-domesticated) vertebrate animals which may be imported, sold or possessed without a permit."

More information on animals in Massachusetts is available at Mass. Law About Animals.

Two New Appeals Court Standing Orders Re:Docketing Statements

The Appeals Court will continue the Pilot Program Requiring Appellants to File Docketing Statements in Civil Cases through December 31, 2012. The program had been scheduled to end December 1, 2011. In addition, the court has issued a new Standing Order, Adoption of Pilot Program Requiring Appellants to File Docketing Statements in Criminal Cases. This order is effective  December 1, 2011 through December 31, 2012.
The court said this about the new criminal docketing statements:

"During the course of the pilot, the docketing statement will be posted on the Appeals Court website as a PDF form that will have drop-down menus, calendars, and text that will automatically fill in certain information. Attorneys and litigants will be able to complete and save the form and then file it by e-mail. Incarcerated self-represented appellants would not he required to participate.

"The Appeals Court solicited public comment on the proposed pilot program and several comments were received. After reviewing those comments, we removed the requirement of a statement of anticipated issues."

Fixed: Remote Access to Databases is now working!

Patrons with valid Trial Court Law Library cards can now access Heinonline, Retrievelaw and Nolo E-books remotely. Thank you for your patience.

Remote Access to Databases currently unavailable

We are aware of the problem and are working with the vendor to get these up and running ASAP.

In the meantime, please feel free to use our other services, such as Document Delivery, Ask A Librarian, our email reference service or call a librarian at any of our libraries for reference assistance.

We apologize for any inconvenience this may cause.

Remote Access to Databases Unavailable Today

We are going through a system upgrade today, so you may not be able to access our databases from your home or office. In-library access is still working, though, so please stop in!

Buyer of property after invalid foreclosure has no standing

In the case of Bevilacqua v.Rodriguez, appealed from a Land Court decision, the SJC has ruled on a follow up issue from the earlier case of US Bank National Ass. v. Ibanez. In Ibanez, the court held that absence of authority to hold the mortgage, the sale is void. In the current case, the SJC ruled that the purchaser at foreclosure, Bevilacqua, had no standing to sue for title since the underlying foreclosure was invalid. In an unusual twist, the respondent did not appear and could not be located. The Land Court, in his absence, raised the issue of standing under MGL ch. 240 sec. 1.
Don't forget to check our page on Foreclosure Law.

Second Annual Toomey Lecture

Wayne A. Budd, Esq. will speak "My Journey: Lessons Learned from a Life in the Law ." Wayne A. Budd, Esq. is presently senior counsel in the Litigation Department of Goodwin Procter LLP in Boston, where he specializes in business and commercial litigation. He has had a varied legal career ranging from Associate Attorney General of the United States to partner at Goodwin Proctor to Senior Executive Vice President and General Counsel at John Hancock Financial Services, Inc. to Commissioner of the U.S. Sentencing Commission.

Mr. Budd will speak on Thursday October 20th from 4:00 - 5:30 at the Worcester Trial Court Complex about lessons he has learned from his vast life experience in the law, both in the private and public sectors. This event is free and open to the public. Light refreshments will be served.

New Guidelines for Domestic Abuse Proceedings

The Trial Court has issued the fourth edition of Guidelines for Judicial Practice: Abuse Prevention Proceedings.

These Guidelines reflect a number of substantive and procedural changes. Some changes are based on appellate case law concerning what constitutes notice and when findings are necessary, as well as the relationship of no-contact and stay-away orders, standards for extension of orders, expungement of records, mutual orders, and the ability to issue orders of prevention and protection even without personal jurisdiction. Other revisions are based on statutory changes, which include amendments to the bail statute and the requirement of an order to complete a certified batterer intervention program when abuse prevention orders have been violated.

"The revised c. 209A forms referenced in the Guidelines will be issued by November 1st to be effective on December 1, 2011. The prior use of appendices also has changed."

For more information, see the notice from the court. These guidelines have been linked from our Law About Domestic Violence and Court Rules pages.

Alimony Reform Law signed

New Mass. Alimony Reform Law (H3617) signed by Governor Patrick yesterday sets limits on alimony and eliminates lifetime alimony. Limits include:

(1) If the duration of marriage is 5 years or less, general term alimony shall be no greater than one-half the number of months of the marriage.
(2) If the duration of marriage is 10 years or less, but more than 5 years, general term alimony shall be no greater than 60 per cent of the number of months of the marriage.
(3) If the duration of marriage is 15 years or less, but more than 10 years, general term alimony shall be no greater than 70 per cent of the number of months of the marriage.
(4) If the duration of marriage is 20 years or less, but more than 15 years, general term alimony shall be no greater than 80 per cent of the number of months of the marriage.
(c) The court shall have discretion to order alimony for an indefinite length of time for marriages longer than 20 years.

Further, cohabitation of the recipient spouse may end alimony:

(d) General term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient has maintained a common household, as defined below, with another person for a continuous period of at least 3 months. 

The new law is effective for alimony judgments entered on or after March 1, 2012. Those paying alimony who want to file for a modification based on the new law must wait until:

• March 1, 2013 for those who were married less than 5 years, or any payor who will reach federal retirement age (as defined in the law) before March 1, 2015.
• March 1, 2014 for those married 5-10 years.
• March 1, 2015 for those married 10-15 years.
• September 1, 2015 for those married 15-20 years. 

There are many more details in the law, including which assets are included and more.

MA Law Office Management Assistance Programs

Mass. LOMAP, funded by Lawyers Concerned for Lawyers, Inc. is kicking off the first of their monthly webinars on September 27th at 12 p.m. with a Free Webinar presented by Carolyn Elefant, an advocate for solo and small firm success. The ABA has published her co-authored book, titled "Social Media for Lawyers: The Next Frontier; and it is available for borrowing at several Trial Court Law Libraries. While the webinar is free, it is limited to the first 50 people who sign in. RSVP's are suggested.

U Mass School of Law Dartmouth hosts seminar on Uniform Probate Code and MassHealth

A continuing legal education program on the implementation of the new Massachusetts Uniform Probate Code as well as community services and MassHealth will be held at the University of Massachusetts School of Law at Dartmouth on October 21, 2011 from 8:30am to 4:30pm. For registration information, contact Christine Carreiro (508-910-9062 or email ccarreiro@umassd.edu) and for program information, Attorney Patricia Bloom-McDonald (781-713-4709 or email McBloomLaw@McBloomLaw.com).

New report released on hiring and promotion of Trial Court administrative employees

The Supreme Judicial Court Task Force for Hiring in the Judicial Branch, headed by former Attorney General Scott Harshbarger, issued a report on the hiring and promotion practices in the judicial branch. Recommendations were made to expand the human resources responsibility in the Trial Court, establish an employee performance review system, conduct trainings for interviewers, and update job competencies.

New Massachusetts Court Reform Law

A court reform bill was signed into law by Governor Patrick earlier this month (Chapter 93 of the Acts of 2011). The legislation provides for the hiring of a court administrator to act as the administrative head of the Trial Court. The court administrator will be responsible for court personnel, security and facilities. The position of the Chief Justice for Administration and Management will be renamed Chief Justice of the Trial Court. The Chief Justice will be the policy and judicial head of the Trial Court. Any disputes between the court administrator and the Chief Justice of the Trial Court will be settled by the Chief Justice of the Massachusetts Supreme Judicial Court. The statute also provides for the Probation Department to remain within the judicial branch. Although most of the statutory changes will take effect on July 1, 2012, the legislation allows the court administrator to be hired before this date.

New SJC Rule 4:02(10) effective Thursday

Rule 4:02, Registration of Attorneys, was amended in June to add the following subsection (10):

(10) Residential Addresses Confidential

Residential addresses disclosed on registration statements, except those designated as the registrant's place of business, shall be treated as confidential and shall be used by the Board and by Bar Counsel only for the purpose of communicating with registrants or otherwise in the course of the business of the Board or Bar Counsel. Other than in the course of such business, neither the Board nor Bar Counsel shall disclose any such residential address to any third party unless directed to do so by order of this Court for Suffolk County.

The new subsection is effective September 1, 2011.

Police lose appeal in cell phone video civil case

When Simon Glik videod an arrest on Boston Common, the police arrested him for violating the wiretapping statute, among others. Those charges were later dropped, and deemed baseless.
Glik then filed a civil suit claiming violation of civil rights. The intelocutory appeal by the police was heard in June, and issued on Friday here. In part it reads “We conclude, based on the facts alleged, that Glik was exercising clearly-established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause...” They concluded the video was not secret, and so the police lacked probable cause.

State of Emergency

What does Hurrican Irene mean to you? According to the Executive Office of Public Safety, "[t]here is a misconception that various restrictions or bans automatically are triggered when there is a Gubernatorial State of Emergency in place. This is not so. The declaration of a State of Emergency does not in itself affect the operation of private enterprise. Travel is not automatically banned; businesses are not automatically closed. Many businesses do have contractual agreements with their employees regarding who does/does not have to report to work when a Gubernatorial State of Emergency is issued."

State stops 5 reverse mortgage companies

The Massachusetts Division of Banks has ordered 5 companies to stop offering reverse mortgages to elderly homeowners, stating that they are not licensed in Massachusetts. The Globe reports today that Eldervantage, Lender 411, Senior Reverse Mortgage Online, Reverse Mortgage Helpdesk and Reverse Mortgage Site are not allowed to do business in Massachusetts.
The Division of Banks is currently in the public comment phase of updating and increasing oversite of reverse mortgages. New regulations are under review that will add more consumer protections for reverse mortgages.
For more information, refer to our page on the Law of reverse Mortgages.

Jury Instructions on Responsibility, Mental Illness and Drug or Alcohol Use

Earlier this week, the Supreme Judicial Court, in Comm. v. DiPadova, recommended a revised set of jury instructions in cases where a defendant's legal capacity is at issue because of a combination of mental illness and drug or alcohol use. The summary provided in the opinion provides a clear explanation:

"where a defendant's substance abuse interacts with a mental disease or defect, that defendant is criminally responsible only if two conditions are true: (1) his mental condition alone, prior to the consumption of the drugs, did not render him criminally irresponsible; and (2) he knew or reasonably should have known that this consumption would cause him to lose substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law--that is, would cause him to become criminally irresponsible."

The recommended revision provided in the case appendix is reprinted below:

RECOMMENDED REVISION OF BERRY  INSTRUCTION 

"A defendant's lack of criminal responsibility must be due to a mental disease or defect. Intoxication caused by the voluntary consumption of alcohol or drugs, by itself, is not a mental disease or defect. Where a defendant lacks substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law solely as a result of voluntary intoxication, then he is criminally responsible for his conduct.

"However, the consumption of alcohol or drugs may trigger or intensify (make worse) a defendant's preexisting mental disease or defect. If it does so, and the mental disease or defect then causes the defendant to lose the substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law, the defendant is not criminally responsible for his conduct.

[Continue as follows where there is evidence of defendant's knowledge:]
"There is one exception to the principle just stated. A defendant who loses the substantial capacity I have just described after he consumes drugs or alcohol, who knows or had reason to know that consumption would trigger or intensify in him a mental illness or condition that could cause him to lack that capacity, is criminally responsible for his resulting conduct. In deciding what the defendant had reason to know about the consequences of his consumption of drugs or alcohol, you should consider the question solely from the defendant's point of view, including his mental capacity and his past experience with drugs or alcohol. But you must keep in mind that ... 

or
[Continue as follows where there is no evidence of a defendant's knowledge:

"You must also keep in mind that ...] ... where a defendant, at the time the crime is committed, has a mental disease or defect that itself causes him to lack the substantial capacity that I have just described, he is not criminally responsible for his conduct regardless of whether he uses or does not use alcohol or drugs. That is true even if he does use alcohol or drugs and the alcohol or drug use makes the symptoms of his mental disease or defect worse, and even if he knew they would make his symptoms worse.

"Remember that the Commonwealth must prove to you beyond a reasonable doubt that the defendant was sane at the time the crime was committed, that is, that the defendant did not lack criminal responsibility at that time. It is the Commonwealth's burden to prove, at the time of the crime, at least one of the following facts beyond a reasonable doubt: 

"that the defendant did not suffer from a mental disease or defect; or 

"that if the defendant did suffer from a mental disease or defect, he nonetheless retained the substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law; or 

"that if the defendant lacked the substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to legal requirements, his lack of such capacity was solely the result of voluntary intoxication by alcohol or other drugs; or 

"that if the defendant lacked the substantial capacity I have just described due to a combination of a mental disease or defect and his voluntary consumption of alcohol or other drugs, he knew or should have known that his use of the substance[s] would interact with his mental disease or defect and cause him to lose such capacity.

"If the Commonwealth has failed to prove at least one of these four facts beyond a reasonable doubt, then you must find the defendant not guilty by reason of lack of criminal responsibility." 

Gambling bill text available

The legislature has partially unveiled a new gambling bill which has the backing of the house and senate leaders as well as the governor. The bill has not been posted to the web as of this writing, but we have the bill available to email if anyone would like to review it in detail. We will update our Gambling page when the bill is posted on the General Court web site.
Contact us through our document delivery page , or through your local law library.

"Service animals" definition narrowed by DOJ

Recently the regulations of the Department of Justice were amended to clarify the definition of service animals for public accommodation. 28 CFR 36.104 (page 56250) has been changed to limit the application to animals who's "work or tasks performed by a service animal must be directly related to the handler’s disability." It goes so far as to add that "The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition." For more information, see our page on the Law of Service Animals.

Guardianship and Conservatorship Resources

The Massachusetts Guardianship Association has two helpful booklets. Handbook for Massachusetts Guardians  includes the rights of incapacitated persons, the obligations of guardians and terminating guardianship. Handbook for Massachusetts Conservators explains the rights of individuals and the obligations of conservators, as well as how to terminate the conservatorship.

More information is available at our Law About Guardianship and Conservatorship.

AG Bid Protest Decisions Now Available Online

Bid protest decisions regarding disputed public construction contracts in Massachusetts are now available online under a transparency initiative announced Wednesday by Attorney General Martha Coakley.  The database available on the attorney general's web site covered decisions dating back to 2003 and also includes some decisions from 1989 until 2002 with more on the way.  In a statement, Coakley said the decisions help ensure that contracts are awarded in a fair and transparent manner and said the decisions offer guidance to state agencies, cities and towns, and contractors.  The attorney general's Bid Unit has been enforcing public bidding laws since 1993, when it assumed the responsibility from the former Department of Labor and Industries. 

These and other agency decisions are available from our Mass. Agency and Commission Decisions and Bulletins. 

When is a General Ordinance Really a Zoning Ordinance?

When it limits off-street parking on private property of single-family residences, according to the Appeals Court in Spenlinhauer v. Town of Barnstable, decided yesterday.  The ordinance in question was a general ordinance that limited the number of motor vehicles that could be parked "overnight, offstreet and in the open outside a single family dwelling."  The court ruled that "the town's attempt to use its general ordinance power to regulate off-street parking undercuts "the assorted protections contained in" c. 40A, in the process frustrating the purposes for which c. 40A was enacted." In conclusion, the court (McHugh, J.) stated:

"The bylaw does not simply focus on individual applications for activities in which a landowner wishes to engage but instead regulates parking on all land in single-family residence zones. Finally, although the town claims that the ordinance was enacted as a health measure pursuant to the town's general police power, there is on this record no nexus between public health and overnight off-street parking. Indeed, it is difficult to conjure a menace to public health that arises as the sun sets over unoccupied vehicles parked on the grounds of the house where their owners reside."

Jury Can't Re-Deliberate After Expressing Doubt After Verdict

In Commonwealth v. Lassiter, decided by the Appeals Court today, a jury announced a guilty verdict, but one juror spontaneously expressed doubt to the judge who came to speak to them after they left the courtroom. "On her own initiative, but without objection from either side, the judge then struck the OUI verdict and instructed the jury to redeliberate on that charge." The Appeals Court held that a jury cannot be called back to re-deliberate once a verdict has been accepted.

"Once a verdict has been affirmed by the jurors and recorded by the clerk, a judge is generally precluded from inquiring into alleged improprieties in the jury's deliberations or decision-making. See Commonwealth v. Brown, 367 Mass. 24, 28 (1975); Commonwealth v. Fidler, 377 Mass. 192, 196-198 (1979); Commonwealth v. Martell, 407 Mass. at 294-295. "Juror testimony concerning the mental processes of jurors during deliberations ... is not permitted to impeach a verdict." Cassamasse v. J.G. Lamotte & Son, Inc., 391 Mass. 315, 317-318 (1984). See Commonwealth v. Pytou Heang, 458 Mass. 827, 858 (2011). See also Mass. G. Evid. § 606(b) (2011).

"Thus, a judge generally cannot inquire into, or set aside, a recorded verdict on account of a juror's post-hoc statement that he or she disagreed with the verdict. See Commonwealth v. Dias, 419 Mass. 698, 702-703 (1995); Commonwealth v. Pytou Heang, supra. "Tension between jurors favoring guilt and those favoring acquittal is part and parcel of the internal decision-making process of jury deliberations." Commonwealth v. Mahoney, 406 Mass. 843, 855 (1990). "Whatever disagreement that a juror may have secretly entertained but did not indicate in open court may not be the basis for reversal." Commonwealth v. Lawson, 425 Mass. 528, 532 (1997). Once the juror affirms or acquiesces in the verdict as announced in open court, then "neither [his] change of heart nor [his] subsequent disclosure of a subjective disagreement with [his] apparent vote provides a basis for vacating the verdict." Commonwealth v. Dias, supra at 703. 

"Applying these principles, we conclude that the judge erred when she struck the first recorded verdict. "The jury's verdict was apparently unanimous, and any juror's inadequately disclosed, subjective disagreement with the verdict as announced cannot be the basis for vacating it ..." (footnote omitted). Commonwealth v. Dias, supra at 701-702."

Is Discovery Rule Applicable When Leak Later Leads to Toxic Mold?

The Appeals Court issued an opinion today in Doherty v. Admiral's Flagship Condominium Trust, which takes on the issue of whether the discovery rule applies when a leak occurs outside the statute of limitations period causing mold infiltration sometime later. The court said it does:

"The question whether the discovery rule applies to circumstances involving a water intrusion outside the limitations period, followed by the later development and discovery of toxic mold, is novel and has not yet been addressed in Massachusetts. Other jurisdictions that have addressed it have applied the rule to such cases. Those courts have held, at the least, that "when the claimant in a toxic mold case experiences physical symptoms that would cause an ordinary person to make an inquiry about the discovery of the cause of the symptoms, that is the point at which the statute of limitations begins to accrue." Gerke v. Romero, 148 N.M. 367, 372 (Ct.App.2010). See Gleason v. Borough of Moosic, 15 A.3d 479, 486-487 (Pa.2011) (discovery rule tolled statute of limitations to time when plaintiffs knew or should have known cause of their physical injuries, an issue of fact for jury where plaintiffs did not link their health problems to hazardous mold until several years after flooding incident in their home); Dutton v. Farmers Group, Inc., No. E2009- 00746-COA-R3-CV, 2010 Tenn.App. LEXIS 395, at 22-23 (Tenn.Ct.App. June 22, 2010) (discovery rule tolled the statute of limitations where "[t]oxic mold spores were a latent problem concealed within [p]laintiffs' home" that did not become apparent until years after flooding); Pirtle v. Kahn, 177 S.W.3d 567, 572-573 (Tex.Ct.App.2005) (applying discovery rule, plaintiff's cause of action accrued "when she found the leak in her apartment, saw the mold, and immediately drew the inference that the mold caused her illnesses," despite her experiencing health problems for years before discovering the mold)."

"We agree with the foregoing cases that without some indication of a hazardous contamination, the plaintiff could not have been aware that she was being exposed to toxic mold, regardless of when the leak began. Contrary to the defendants argument, it is not a certainty that all water infiltration will eventually evolve into toxic mold. To conclude otherwise would encourage, and possibly even require, a plaintiff to preemptively file suit the moment water starts to infiltrate a dwelling or other building, before any mold or mold-related injury has even occurred. "

Happy Tax Holiday Weekend!

St. 2011, c.86 created a tax holiday weekend this Saturday and Sunday August 13-14. Our helpful Mass. Department of Revenue prepared a "Technical Information Release," TIR-11-7: The 2011 Massachusetts Sales Tax Holiday Weekend that covers pretty much everything there is to know about the law and its limitations. It also includes helpful information for retailers.

And if you don't want to shop on this beautiful summer weekend, remember that sales tax in Massachusetts is 6.25% . A 6.25% sale on any other day would actually save you a little bit more money than the tax holiday (a $10 item would cost $10 on the tax holiday and $9.96 if you saved 6.25% and then paid tax). So shop or go to the beach and enjoy!

New School Immunization Requirements

The Dept of Health and Human Services has issued Mass. School Immunization requirements for the 2011-2012 School Year. Additional requirements have been issued for entry to  kindergarten, 7th grade, college freshman and health science students.

Their memo to schools, Revisions to the Regulation Specifying Immunizations Required for Entry to School,  summarizes  the changes  and  compares them to the previous requirements.

For more information on vaccination and immunization, see our new page, Massachusetts Law About Vaccination and Immunization.

New Regulations Expedite Treatment of Chlamydia for Sex Partners

Amendments to 105 CMR 700 and 721 approved yesterday allow doctors and other health practitioners to prescribe or provide antibiotics to the sex partners of patients with chlamydia without seeing the partners directly. "Known as Expedited Partner Therapy (EPT), this practice involves presumptively treating the sex partners of people diagnosed with chlamydia infection without first examining or testing the partner. EPT helps interrupt the spread of disease by getting treatment to people who might otherwise remain untreated."

Today's Boston Globe quotes Dr. Anita Barry, director of the infectious disease bureau of the Boston Public Health Commission. "As for the concern about antibiotic overuse - an issue that disease trackers say is responsible for creating antibiotic-resistant super bugs - Barry said the benefits of providing prescriptions for sexual partners of chlamydia patients far outweigh the risks. “It’s really a one-hit, high-dose, kill-what’s-there, and you’re done,’’ Barry said."

Urban Open-Air Mobile Library

In A new chapter for urban readers, today's Boston Globe highlights a cool new idea from the creators of the former Storefront Library in Chinatown: The Uni: a portable, open-air reading room for public space. Not your parents' bookmobile,

"the Uni is a new type of small-scale, portable institution that puts books and learning experiences such as readings, classes, and screenings where we don't regularly see them in the city. It can be installed in various configurations at different scales, and it can thrive in a variety of locations, efficiently transforming areas within parks, plazas, or empty lots into places of community use, learning, and public engagement." 

"The Uni starts with a custom-designed infrastructure that can be adapted to almost any kind of urban space. It consists of 144 open-faced cubes, which can be stacked and locked together in different configurations or heights, depending on site conditions. Together these cubes provide a modular system for programming public space and creating a venue for books, workshops, arts-and-crafts, demonstrations, classes, lectures, public meetings, and small film screenings."

Pictures at the project's site are very exciting. We only wish they were doing it here!

History of Legal Ownership of Cats

In Comm. v. Epifania, decided today, the Appeals Court outlines the history of the legal ownership of cats (and dogs) in Massachusetts, and criminal responsibility for stealing or harming them:

"At common law, cats did not receive through ownership by human beings the same legal protection provided to some other animals. Thus, as the Supreme Judicial Court explained over 140 years ago in Blair v. Forehand, 100 Mass. 136, 140 (1868), at common law, an individual could not be prosecuted for larceny of a cat (or a dog) "even in a state of domestication." There was thought to be "no absolute and valuable" property interest in such animals. Ibid. The same was not true with respect to "[b]easts which have been thoroughly tamed, and are used for burden or husbandry, or for food, such as horses, cattle and sheep" which were viewed as "property of intrinsic value." Ibid.

"Consistent with this, for 150 years, starting in 1836, § 112 and its predecessors provided criminal punishment for the wilful and malicious killing of "any horse, cattle, or other beast of another person." Pub. Stats. 1882, c. 203, § 93. See Rev. Stats. 1836, c. 126, § 39 ("any horses, cattle or other beasts of another person"); Gen. Stats. 1860, c. 161, § 80 ("any horses, cattle, or other beasts, of another person"). In 1986, in apparent recognition of a more modern view, the Legislature amended § 112, so that it now refers to the malicious killing not of "beast[s]," a limited category, but of "animal[s] of another person.""

Right to Classification Hearing Not Waived by Failure to Appear

In Doe v. Sex Offender Registry Board, the Supreme Judicial Court decided Friday that the Sex Offender Registry Board exceeding its authority in enacting 803 CMR 1.13(2). The regulation reads:

"(2) Failure of the sex offender to appear at the scheduled hearing without good cause shown shall result in the waiver of the right to a hearing and the registration determination and, if applicable, the recommended classification becoming the final Sex Offender Registry Board decision and shall not be subject to judicial review. Notification of such decision shall be accomplished in accordance with 803 CMR 1.25. In addition, law enforcement shall be notified in accordance with 803 CMR 1.27."

The court held:

"Because the Legislature specified only that the classification hearing is waived where the sex offender does not timely request a hearing, we conclude that the board lacked the authority to declare the hearing waived where a sex offender requests a hearing and the sex offender's attorney is present at that hearing." 

"We conclude, therefore, that the board's regulation exceeds the scope of its legislative mandate by declaring that a sex offender who has asked that the board be put to its burden and whose attorney is present and prepared to challenge the recommended classification waives the right to a classification hearing by failing to appear without good cause."

Level 3 Sex Offender Not Automatically Barred from Rest Home

In Doe v. Boston Police Commissioner, decided Friday, the Supreme Judicial Court held that a level three sex offender was entitled to a hearing before  MGL c.6, s.178K (2)(e) (barring level three offenders from rest homes) could be applied against him.

"Even assuming that some level three sex offenders in long-term care facilities pose a danger to other residents, others--perhaps especially those who have no history of assaults against adult victims--pose no particular danger to the population the policy aims to protect and are fully capable of contributing positively to rest home communities.... In light of the further encroachment on the plaintiff's liberty and property interests imposed by the statute that places limitations on where he may reside, which is further heightened by his circumstances, the plaintiff must have an opportunity to establish that he poses minimal risk to the community the statute was intended to protect and, if removed from the rest home, will likely become homeless and expose himself to significant harm."

"In order to protect his liberty and property interests in continued residence in the rest home--to which he was admitted and where he chooses to live--the plaintiff is entitled to a meaningful opportunity to be heard before § 178K (2) (e ) may be enforced against him. Because the statute does not provide for, or permit, such an individualized determination, as applied to the plaintiff it violates due process of law under the Fourteenth Amendment to the United States Constitution and arts. 10 and 12 of the Massachusetts Declaration of Rights. The matter is remanded to the county court where a declaration shall enter stating that, as applied to the plaintiff, G.L. c. 6, § 178K (2) (e ), does not comport with the due process clause of the Fourteenth Amendment and arts. 10 and 12, and cannot be enforced against him."

Must employers keep workers cool?

While there are guidelines for workplace temperatures in Massachusetts, there are few requirements, such as the requirement that workplaces be heated from Oct 15 to May 15. [See Mass GL c 149, s 13.] Proper heat ranges vary but here is what they look like (in degrees Fahrenheit): Foundaries, 50-60; Factories, 60-62; Machine shops, 60-62; Public buildings, 60-68; Restaurants, 62-66; Warehouses, 62-65; Theaters, 62-65; Stores, 65; Offices, 66-68; and Schools, 66-68 [Source: Your rights on the job, 5e, by Robert Schwartz (Labor Guild of Boston, c 2008), pg. 38.] Although it appears as if there's an upper "limit," those ranges apply between Oct 15 and May 15. No law or regulation requires employers to provide air conditioning for their employees if temperatures exceed that upper limit during the summer. If temperatures in a workplace become unbearable, making the working conditions unhealthy or unsafe, workers can complain to the local board of health or to OSHA. To find out how to file a complaint with OSHA, link to http://www.osha.gov/as/opa/worker/complain.html To read Mass GL c 149, s 113 at http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter149/Section113

Comments Sought on Proposed Changes to Superior Court Rules

Through September 2, 2011, the Superior Court is soliciting comments on proposed changes to Rule 9A and proposed new rule 30B:

"Chief Justice Barbara J. Rouse of the Superior Court invites comments on proposed (1) changes to Superior Court Rule 9A(b)(5)(ii) that would require a party opposing a motion for summary judgment to cite to pleadings, depositions, etc., in support of an opposition to a motion for summary judgment; and (2) a new Superior Court rule on "Certification of Expert Disclosures" (Proposed Superior Court Rule 30B), which would require that experts who will testify at trial sign the answers to expert interrogatories certifying that the answer accurately states the subject matter(s), the substance of the facts and opinions, and a summary of the grounds for each opinion, to which the expert is expected to testify at trial."

New UPC and Rogers forms

The Mass. Probate and Family Court has issued new forms for Guardianship and Conservatorship, effective June 30, 2011, as both fillable and non-fillable PDFs.

Also, last week the court issued Standing Order 4-11: Administrative Process for Uncontested Rogers Reviews and Extensions, which deals with the administration of antipsychotic medication. The accompanying forms for processing uncontested Rogers matters, effective July 1, 2011, are now available.

SJC Rule 4:02 amended effective September 1

A new subsection (10) has been added to SJC Rule 4:02 effective September 1, 2011. The new subsection reads:

(10) Residential Addresses Confidential
Residential addresses disclosed on registration statements, except those designated as the registrant's place of business, shall be treated as confidential and shall be used by the Board and by Bar Counsel only for the purpose of communicating with registrants or otherwise in the course of the business of the Board or Bar Counsel. Other than in the course of such business, neither the Board nor Bar Counsel shall disclose any such residential address to any third party unless directed to do so by order of this Court for Suffolk County. 

New BBO Rules

The Board of Bar Overseers Rules have been amended effective September 1, 2011. There have been two changes:
Remove Rule 3.54 and replace with a new Subchapter G: Recusal.
Add new Section 4.5B: Taking out-of-state depositions pursuant to subpoena

The text is available at http://www.lawlib.state.ma.us/docs/BBORulesAmendments.pdf.

Some new & revised District Court's Criminal Model Jury Instructions

District Court has added a number of new & revised criminal jury instructions: http://www.mass.gov/courts/courtsandjudges/courts/districtcourt/jury-instructions/criminal/index.html

Eviction Storage Law Limits Distance of Storage Facility

Massachusetts' eviction storage law, MGL c.239, s.4 was amended effective March 16, 2011 by St.2010, c.393. The old law said, in part, that tenants' property 

"shall be stored with the licensed public warehouser identified in the notice provided to the defendant pursuant to section 3, except that the officer shall store the property with a warehouser or other storage facility of the defendant’s choosing if the defendant notifies the officer of his choice in writing at or before the time of removal of the property."

The new law adds a sentence to s.4(a) regarding the distance of a storage facility: 

"the term 'warehouser or other storage facility' shall mean a public warehouse licensed and bonded pursuant to section 1 of chapter 105, located in the commonwealth and within a 20 mile radius of the land or tenements from which the personal property is removed." 

Crowd Manager Training Program Online

On June 1, 2011, the need for Certified Crowd Managers at every nightclub, dance hall, discothèque or bar, with an occupant load of 100 persons or more became effective in accordance with the state regulation .

For further information, see the State Fire Marshall's website.

Can the second and third cars in line proceed through a stop sign?

This is one of the most common questions we get. People who learned to drive in Massachusetts some years ago were taught that it was OK, and don't quite believe that the law (MGL c.89, s.9) says otherwise. Happily, the Boston Globe printed a column this weekend, Some old habits aren’t right, or safe, anymore, that spells it out and quotes the experts. So, although it may have been the law "in the 1960s and early 1970s," now every car must stop when they are "at the point nearest the intersecting roadway."   

Giving a Caregiver Authorization to Make Decisions for Your Children

MGL c.201F provides a mechanism for parents to authorize a caregiver to make educational and health decisions for their children: the Caregiver Authorization Affidavit. A caregiver is defined as "an adult with whom a minor resides," and there are, of course, many reasons why a parent may need their children to live with someone else for a period of time. The authorization is good for up to two years (you specify the time period) and does not have to be filed with the court. Also, it does not affect the parent's rights to make decisions for the child. In fact, if the decisions of the caregiver and parent conflict, the parent's decision will "supersede the decision of the caregiver."

The Massachusetts Probate and Family Court provides directions for filling out the form, and you can read more about its uses at the Massachusetts Estate Planning, Probate and Elder Law blog, Mass. Legal Help's Caregiver Educational and Medical Authorization, and the Department of Education, which provides helpful information for schools on how to manage caregiver authorizations. You'll find a link to the form on our website as well. 

Probate and Family Court Standing Orders

We've added the text of all currently effective Probate and Family Court Standing Orders to our site. The court has added three new standing orders in the past few weeks, which brought the need for a centralized page to our attention. The new orders:

• Standing Order 1-11: Probate and Family Court's Use of Information Contained in the Court Activity Record Information (CARI) Report, effective June 1, 2011
• Standing Order 2-11: Probate and Family Court's Use of Information Obtained by the Department of Children and Families, effective June 1, 2011
• Standing Order 3-11: Modification Pilot Program for IV-D cases in the Bristol Division of the Probate and Family Court, effective May 16, 2011

Hampden County Bar's "Day of Justice" Offers Programs on Key Issues

The Hampden County Bar Association's Day of Justice progam today is offering exciting workshops on current issues of interest to residents from 1-4 pm at the Old First Church at Court Square in Springfield, MA. Workshops are free and include:

• What to do When Stopped by Police?
• When Your Landlord is Foreclosed Upon: What a Tenant Needs to Know
• Options for Homeowners Facing Foreclosure
• Getting Help with Child Support Issues
• I Have Been Fired! Now What?
• Option for Immigrants Who are Survivors of Crime and Abuse.

For more information, contact the bar association at (413) 732-4648.

Open Court Project Puts Quincy District Court Live on Internet

Beginning today, the Quincy District Court's First Criminal Session's proceedings will be streamed live over the Internet. The Open Court project is an experiment in improving access to court proceedings. "At the outset, a video camera has been set up to stream the court’s First Session courtroom. Anyone on the internet may view these live proceedings, alongside daily archives. A Wi-Fi network has also been set up for journalists and bloggers who wish to transmit stories, post reports, and otherwise go about their online business directly from the courtroom."

The project is beginning with First Session proceedings, which include "arraignments, new summons arrests and default removals."  According to the Boston Globe, "John Davidow, executive editor in charge of new media at WBUR, who developed the idea for the project.... said that during the next year, the goal is to move the experiment outside the first session courtroom. He said the hope is to stream criminal and civil trials and small claims cases as well."

More information on how the project will function within the courtroom is available at the Boston Globe and the Open Court site. Twitter hashtag: #opencourtus.

SJC Order Re: Bar Discipline Cases Extended

The SJC's "Order Establishing a Modified Procedure for Appeals in Bar Discipline Cases," which would have expired on April 1, 2011 has been extended until April 1, 2013. The text of the Order is below:

Order Establishing a Modified Procedure for Appeals in Bar Discipline Cases

To expedite the resolution of bar discipline appeals in this court, while ensuring that the rights of all litigants involved in such cases are protected, the Supreme Judicial Court has approved a pilot program as follows. There shall be a modified procedure for appeals from decisions of the court's single justices in bar discipline cases. All bar discipline cases entered in the Supreme Judicial Court for Suffolk County after April 1, 2009 shall be subject to this order, and to the extent that its provisions are inconsistent with the Massachusetts Rules of Appellate Procedure, this standing order shall govern. This following pilot program will be conducted for a period of two years, or until such other time as the court orders:

(a) A party aggrieved by a final order or judgment of the single justice may appeal to the full court for review of the order or judgment. A notice of appeal must be filed with the clerk of the Supreme Judicial Court for Suffolk County within ten days of entry of the final order or judgment for which review is sought. An appeal shall not stay any order or judgment of suspension or disbarment unless the single justice or this court so orders.

(b) The appeal shall initially be presented to the full court on the record that was before the single justice, together with a preliminary memorandum from the appellant and, if requested, from the appellee. The appellant shall be responsible for preparing and filing a record appendix containing copies of all the relevant papers from the single justice proceeding, including but not limited to the hearing committee report, appeal panel report, if any, board of bar overseers memorandum, the order or judgment of the single justice, and any memorandum of decision of the single justice. The appellant's preliminary memorandum, which shall not exceed twenty pages, double spaced, shall set forth the relevant background and summarize the appellant's arguments on appeal, with citations to applicable authority. It is incumbent on the appellant to demonstrate in this memorandum that there has been an error of law or abuse of discretion by the single justice; that the decision is not supported by substantial evidence; that the sanction is markedly disparate from the sanctions imposed in other cases involving similar circumstances; or that for other reasons the decision will result in a substantial injustice. Nine copies of the record appendix and preliminary memorandum shall be filed with the clerk of the Supreme Judicial Court for the Commonwealth within thirty days after the appeal has been docketed in the full court; one copy of the record appendix and memorandum shall be served on each other party. In the case of multiple appellants or cross-appellants, each appellant shall be permitted to file a preliminary memorandum within this time frame, but in such a case, the appellants shall submit, and share the cost of, a single record appendix. If requested by the court, the appellee may file a responsive memorandum, not to exceed twenty pages, double spaced, within twenty days of the court's request. Extensions of time for filing memoranda will rarely be granted and should not be anticipated.

(c) Based on its review of the parties' memoranda and the record appendix, the full court may affirm, reverse, or modify the order or judgment of the single justice without oral argument; alternatively, if any three Justices so vote, the court may direct the appeal to proceed in the regular course, in which case the parties will be permitted to file full briefs conformably with the Rules of Appellate Procedure and the case will be scheduled for oral argument.

(d) The Rules of Appellate Procedure shall apply to appeals covered by this standing order to the extent they are not inconsistent with this order.

(e) The clerk of this court for Suffolk County shall provide a copy of this standing order to the respondent attorney or his or her legal representative in each bar discipline case at the time the case is commenced in the county court, and shall remind the parties of their obligations under the order at the time she notifies them that the record has been assembled for appeal.

New and Amended Appeals Court Standing Orders

Last week, the SJC approved two new and two amended Appeals Court Standing Orders, effective June 1, 2011. Since these don't yet appear on the Appeals Court site, we've added a page on Appeals Court Standing Orders which links to all of them.

Appeals Court Pilot Program Requiring Appellants to File Docketing Statements in Civil Appeals

Effective June 1, 2011, the Mass. Appeals Court will begin a pilot program requiring appellants to file docketing statements in all civil appeals. According to the court:

The docketing statement will provide the court with important background information that will be useful not only when the case is entered and screened, but also while it is under consideration. The pilot program, in turn, will help us to refine the format of the form and to determine if any adjustments are required. During the course of the pilot, the docketing statement will be posted on the Appeals Court website as a PDF form that will have drop-down menus, calendars, and text that will automatically fill in certain information. Attorneys and litigants will be able to complete and save the form and then file it by e-mail.

A sample of the form is included in the notice, but it does not include the drop-down menus and other advanced features at this time.

Obscenity Law Changed

On April 11, Gov. Patrick signed H3318, which amends the law regarding disseminating obscenity to minors, effective immediately. Section 19 rewrites MGL c.272, s.28 to read:

Section 28. Whoever purposefully disseminates to a person he knows or believes to be a minor any matter harmful to minors, as defined in section 31, knowing it to be harmful to minors, or has in his possession any such matter with the intent to disseminate the same to a person he knows or believes to be a minor, shall be punished by imprisonment in the state prison for not more than 5 years or in a jail or house of correction for not more than 2 1/2 years, or by a fine of not less than $1000 nor more than $10,000 for the first offense, not less than $5000 nor more than $20,000 for the second offense, or not less than $10,000 nor more than $30,000 for a third or subsequent offenses, or by both such fine and imprisonment. A person who disseminates an electronic communication or possesses an electronic communication with the intent to disseminate it shall not be found to have violated this section unless he specifically intends to direct the communication to a person he knows or believes to be a minor. A prosecution commenced under this section shall not be continued without a finding or placed on file. It shall be a defense in a prosecution under this section that the defendant was in a parental or guardianship relationship with the minor. It shall also be a defense in a prosecution under this section if the evidence proves that the defendant was a bona fide school, museum or library, or was acting in the course of his employment as an employee of such organization or of a retail outlet affiliated with and serving the educational purpose of such organization.

This law has been a work in progress. In 2010, in Commonwealth v. Zubiel, 456 Mass. 27, the court held that "'[M]atter,' as defined in [the previous version of] G. L. c. 272, § 31, does not encompass electronically transmitted text, or "online conversations," for the purposes of a prosecution for attempted dissemination of matter harmful to a minor under G. L. c. 272, § 28."

In response, a new law was enacted, St.2010, c.74, s.2-3, which expanded the prohibition on the dissemination of obscenity effective July 11, 2010. It  included, in part, "electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet or wireless network."

In October, 2010, a federal court issued a preliminary injunction barring enforcement of MGL c.272, s.28 and s.31 in American Booksellers Foundation for Free Expression v. Coakley, holding that the law was overly broad and violated the First Amendment.

This new law, then, was enacted in response to those concerns. More information is available at Mass. Law About Obscenity.

Medication Errors and Pharmacy Complaint Forms

Bostonchannel.com reported this morning an incident of a pharmacy's prescription error and said that the customer would be filing a complaint with the Pharmacy Board. That led us to wonder how a consumer would file such a complaint. The Commonwealth's Health and Human Services webpage has an explanation of the Complaint process, as well as links to the Dept. of Public Health's complaint forms for Pharmacy Board,  Dental, Nursing, Genetic Counselling, Physician Assistant and more.

Information on this and other health care issues is available at Mass. Law About Health Care.

Pilot Program at Springfield District Court Starts Friday

A Pilot Program Suspending Certain Requirements of Joint Standing Order No. 1-04 is effective April 1, 2011  at the Springfield District Court for certain civil money damage actions. In actions where all parties are represented by counsel, "parties and their counsel may avoid appearance in court for the conduct of a Case Management Conference upon the timely filing of a joint certification that the purposes of such conference have been achieved by the parties without such appearance." The full text of Joint Standing Order 1-04 is available from Mass. District Court Standing Orders.

8th Edition MA Residential Code, effective February 4, 2011

"The 8^th edition residential code (for one and two family dwellings and townhouses three stories and less) became effective with the February 4, 2011 Massachusetts Register. The 7^th edition residential code will remain in effect concurrently with the new 8^th edition until August 4, 2011. During the concurrency period a project can be designed using either edition. The deadline for filing a permit application for projects designed using the 7^th edition is August 3, 2011.

The 8th edition residential code is comprised of the International Residential Code 2009 (IRC) and a separate package with Massachusetts amendments. The IRC is sold by the International Code Council www.iccsafe.org and the Massachusetts amendments package will be available at the State House Bookstore (617-727-2834)."

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.