New SJC Rule Will Require Professionalism Course

The SJC has issued new Rule 3:16: Practicing with Professionalism Course for New Lawyers. This rule is not effective until September 1, 2013, and applies only to attorneys admitted to the bar on or after that date. The rule will require all new lawyers to "complete a one-day, in-person, mandatory Practicing with Professionalism Course approved by the Supreme Judicial Court or its designee."

SJC Rules on Segregated Confinement

In LaChance v. Commissioner of Correction, decided November 27, the SJC concluded that more procedural safeguards are required for inmates being held in segregated confinement for a significant period of time. The court said, in part:

We conclude that LaChance's ten-month administrative segregation in the SMU on awaiting action status, during which he had the benefit of only informal status reviews, was unlawful. ...

We conclude that LaChance's ten-month placement in the SMU constituted the sort of "atypical and significant hardship" that triggers a right to procedural safeguards....

We conclude that an inmate confined to administrative segregation on awaiting action status, whether such confinement occurs in an area designated as an SMU, a DSU, or otherwise, is entitled, as a matter of due process, to notice of the basis on which he is so detained; a hearing at which he may contest the asserted rationale for his confinement; and a posthearing written notice explaining the reviewing authority's classification decision. ... Although we leave it to the DOC to promulgate regulations that reflect the balance of these interests, we conclude that in no circumstances may an inmate be held in segregated confinement on awaiting action status for longer than ninety days without a hearing. 

PIRG'S 2012 Trouble in Toyland toy safety report.

http://bit.ly/WuyUky

The 2012 Trouble in Toyland report is the 27th annual U.S. Public Interest Research Group survey of toy safety. In this report, U.S. PIRG provides safety guidelines for consumers when purchasing toys for small children and provides examples of toys currently on store shelves that may pose potential safety hazards.

Code of Judicial Conduct Amended

Canon 4 of SJC Rule 3:09, Code of Judicial Conduct, pertaining to extrajudicial activities, has been amended effective January 1, 2013. Amendments include a new comment to Canon 4B on speaking about the administration of justice:

"Speaking to the Public about the Administration of Justice: To further public understanding of the essential role of the judicial branch in our system of government, judges are particularly encouraged to speak to the public, including business and community groups, about issues relating to the administration of justice. A judge must avoid giving the impression that the group or its members are in a special position to influence the judge, and where appropriate, a judge must avoid giving the impression that the judge favors the group's mission."

In-State Tuition for DACA Beneficiaries

The Mass. Dept. of Higher Education has released a Fact Sheet on In-State Tuition for DACA Beneficiaries. Deferred Action for Childhood Arrivals (DACA) is a new federal policy.

"This policy states that the federal government will “defer action” or not prosecute deportation cases for qualifying individuals for a period of two years from the time their application for “deferred action” is approved. If approved, DACA beneficiaries will receive work permits in addition to deferred action status."
"In accordance with this change in federal policy, the Administration has determined that under the existing Board of Higher Education policy, DACA beneficiaries are eligible for instate tuition at our 29 public campuses as long as they meet the Board’s other residency requirements for those institutions."

The fact sheet details the requirements to qualify for DACA. More information on DACA is available at our Law About Immigration.

Trial Court Law Libraries' Holiday Hours

Wednesday November 21:

All libraries open regular hours. No online reference services.

Thursday November 22:

All libraries CLOSED. No online reference services.

Friday November 23:

No online reference services. 

The following law libraries will be CLOSED:

• Bristol
• Fitchburg
• Franklin
• New Bedford

The following law libraries will be OPEN:

• Barnstable
• Berkshire
• Brockton
• Essex
• Fall River
• Hampden 
• Hampshire
• Lawrence
• Lowell
• Norfolk
• Middlesex (closing at 3 pm)
• Plymouth
• Worcester

Adultery in Massachusetts

The Boston Globe published an article today, Mass. Among 23 States Where Adultery is a Crime, But Rarely Prosecuted. We thought we'd provide a little substantive law as background. The adultery statute in Massachusetts is MGL c.272, s.14,  which reads:

A married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.

In a 1983 case, Comm. v. Stowell, the Mass. Supreme Judicial Court held that the adultery law was constitutional, saying, in part:

"Whatever the precise definition of the right of privacy and the scope of its protection of private sexual conduct, there is no fundamental personal privacy right implicit in the concept of ordered liberty barring the prosecution of consenting adults committing adultery in private."

...

We are not unaware that the public policy against adultery is most often expressed in these divorce proceedings and that the crime of adultery is rarely made the subject of criminal prosecution...'To recognize that fact is not to say that [this statute has] become invalid or judicially unenforceable'....The statute remains as a permissible expression of public policy. If any lack of prosecution of the crime of adultery indicates a general public disfavor with the statute, appropriate means exist to address such disfavor to the Legislature, which has the power to change or repeal the statute.

Fordham Law Review has an interesting article on the issue nationwide: How the Establishment Clause Can Influence Substantive Due Process: Adultery Bans After Lawrence, 79 Fordham Law Reivew 605 (2010), which is available to our cardholders for download via HeinOnline.  More information on other Massachusetts laws about sexual conduct is available at our Mass. Law About Sex.

New EBook: Rules for Probation Violation Proceedings

We have added a new ebook to the collection of rules ebooks available at no charge: Mass. District Court Rules for Probation Violation Proceedings. This is the tenth ebook produced by our staff.

You can find the full list of court rules ebooks with directions for their installation at EBooks: Mass. Court Rules and Documents.

Double Jeopardy and Restructured Sentences

In Comm. v. Leggett, decided today, the Appeals Court was called on to "measure a reconstructed sentencing scheme against the standards of the prohibition against double jeopardy." The court ruled that "when a defendant is convicted of both an underlying offense and [a related offense], he reasonably cannot have a legitimate expectation of finality in a portion of the total sentence, even if he has fully served that portion." 

In this case, the defendant served a portion of his original sentence upon four convictions, and then moved successfully for resentencing by a different judge. "He contends that the resulting scheme punishes him twice for two of the convictions and thereby violates the ban against double jeopardy. No prior Massachusetts decision appears to have encountered our question squarely." The court continued,

"A judge's sentencing scheme for a defendant convicted of multiple offenses at one trial is typically an integrated plan and not a mechanical formation of separate sanctions...The vacation of a sentencing scheme creates a clean slate for resentencing.

While there is a reasonable expectation of finality, "a legitimate expectation of finality does not extend to each individual sentence within an aggregate scheme for multiple convictions. The prisoner does not have a reasonable expectation of finality in any one part or element of the total bundle of sentences, but rather in the entirety of the scheme." 

"We join [other] circuits in concluding that when a defendant is convicted of both an underlying offense and [a related offense], he reasonably cannot have a legitimate expectation of finality in a portion of the total sentence, even if he has fully served that portion." ...

"In addition, a rule of component sentence finality would operate redundantly with the restrictions established by a reasonable expectation of finality for the aggregate scheme, with quantitative fairness, and with anti-vindictiveness. The defendant's realistic, and therefore reasonable, reliance rests on the "bottom line" of the aggregate sanctions and not on its constituent intervals.

Berry, J., dissented.

SJC Issues Standing Order Re: Drug Lab Cases

The Supreme Judicial Court has issued a standing order regarding assignment of judges to cases involving allegations of misconduct at the William A. Hinton State Laboratory Institute. Dated November 9, 2012, it says:

This Order is issued to facilitate the handling of matters  related to allegations of misconduct at the William A. Hinton State Laboratory Institute.  To further the expeditious handling of such matters, and notwithstanding any provisions to the contrary in any Rule of Court or Standing Order, it is hereby ORDERED that a Chief Justice of a Trial Court Department may assign for all purposes, including disposition, any post conviction motion in which a party seeks relief based on alleged misconduct at the Hinton State Laboratory to any judge of that Trial Court Department.  The assigned judge may reassign the motion to the original trial judge where the interests of justice require.

This Order is effective immediately and shall remain in effect until further Order of this Court. 

Effective Dates for New Same-Sex Marriage Laws

This week, three states passed same-sex marriage laws: Maine, Maryland and Washington. Here is what we were able to determine about when same-sex couples can marry in those states:

Maine: According to the Bangor Daily News: "The secretary of state has 20 days to approve election results and send them on to the governor, Megan Sanborn said. Gov. Paul LePage then has 10 days to certify the results. The law goes into effect 30 days after the governor certifies election results, Sanborn said." Thus, "Same-sex couples in Maine should be able to obtain marriage licenses by Jan. 5 and get married the same day."

Maryland: The only one of the three with an explicit effective date, this law takes effect on January 1, 2013. but "a license is not effective until 6 a.m. on the second calendar day after the license is issued," so presumably couples can get a license January 1, but cannot marry until  January 3, 2013. 

Washington: This law becomes effective after the election results are certified. According to the Secretary of State, "December 6, 2012 is the last day for the Office of the Secretary of State to certify the returns." There is a three day waiting period after getting a license before you can marry. It appears, then, that the first day to marry is December 9, 2012.

More information on these and other same-sex marriage laws is available at Law About Same-Sex Marriage.

Ban on Mandatory Overtime for Nurses Effective Today

MGL c.111, s.226 as added by St.2012, c.224, s.103, bans mandatory overtime for nurses except in emergency situations. Here are some highlights of the new law:

• Nurses cannot be regularly scheduled for more than "12 hours in any 24 hour period."
• A "hospital shall not require a nurse to work mandatory overtime except in the case of an emergency situation where the safety of the patient requires its use and when there is no reasonable alternative."
• In an emergency, "the facility shall, before requiring mandatory overtime, make a good faith effort to have overtime covered on a voluntary basis. "
• "Hospitals shall report all instances of mandatory overtime and the circumstances requiring its use to the department of public health."
• "A nurse shall not be allowed to exceed 16 consecutive hours worked in a 24 hour period. In the event a nurse works 16 consecutive hours, that nurse must be given at least 8 consecutive hours of off-duty time immediately after the worked overtime."

MUPC Advisory and New and Modified Forms Issued

The Probate and Family Court Department issued a Procedural Advisory on Estate Administration Matters on October 26, 2012. This document provides a general summary of changes to the MUPC as a result of St.2012, c.140, which modified the MUPC and was signed July 8, 2012. The court plans to issue a separate advisory on trust procedures in November. According to the Press Release, the following forms have been changed or added:

"The following forms have been revised:

• MPC 801- Bond 
• MPC 255- Petition for Informal Appointment of Successor PR 
• MPC 760- Order for Informal Appointment of Successor PR  MPC 270- Petition for Formal Appointment of Successor PR 
• MPC 765- Decree and Order for Formal Appointment of Successor PR 
• MPC 264- Statement of Resignation of PR 
• MPC 550- Notice of Informal Probate 

"The following new forms are now available:

• MPC 455- Assent and Waiver of Notice/Renunciation/Nomination/Waiver of  Sureties 
• MPC 941- Instructions for MPC 455 "

New and revised forms are included in the Court's main MUPC Forms page.  More information about the MUPC can be found at our Mass. Law About Wills and Estates. 

Forms and Procedures for Protecting Pets in Abuse and Harassment Cases

The Trial Court has released a memo on new MGL c.209A, s.11, added by St.2012, c.193, effective October 31, 2012. The law "provides that in certain circumstances, a court may order 'possession, care, and control of any domesticated animal owned, possessed, leased, kept or held by either party or a minor child residing in the household to the plaintiff or petitioner.'  The court may also 'order the defendant to refrain from abusing, threatening, taking, interfering with, transferring, encumbering, concealing, harming or otherwise disposing of such animal.'"

It is important to note that, although the new law is part of c.209A, it applies to proceedings under several statutes:  "Whenever the court issues a temporary or permanent vacate, stay away, restraining or no contact order or a judgment under section 18, 34B or 34C of chapter 208, or under section 32 of chapter 209, or under section 3, 4 or 5 of [c.209A], or under section 15 or 20 of chapter 209C, or under section 3 to 7, inclusive, of chapter 258E or a temporary restraining order or preliminary or permanent injunction relative to a domestic relations, child custody, domestic abuse or abuse prevention proceeding."

The memo from the Chief Justice of the Trial Court and the Court Administrator summarizes the law, explains procedures and includes two forms: a petition and an order.

SJC Releases Report on OUI Acquittal Rates

The Supreme Judicial Court has released the report of Special Counsel R.J. Cinquegrana on acquittal rates for Operating Under the Influence in the Boston Municipal Court and District Court Departments. The inquiry was originally confidential, but, according to the statement of the Justices,

"Because the Report provides a thoughtful and careful analysis of systemic issues that affect the rate of conviction in OUI cases, and presents recommendations that warrant consideration by the Judiciary, prosecutors, police, the Legislature, and the general public, we have decided to release the Report to the public." 

The report itself is nearly 150 pages long, and contains detailed statistical analysis, study of the laws in Massachusetts and other states, and specific recommendations.  This and other reports on the Mass. courts are available at About the Massachusetts Court System.

Rules of Professional Conduct Amended

Effective January 1, 2013, Massachusetts Rules of Professional Conduct (SJC Rule 3:07)  Rules 1.5 and 6.5 have been amended.

Rule 1.5, Fees, has a new subsection (b) regarding written fee agreements, which reads:

(1) Except as provided in paragraph (b)(2), the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client in writing before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated in writing to the client.
(2) The requirement of a writing shall not apply to a single-session legal consultation or where the lawyer reasonably expects the total fee to be charged to the client to be less than $500. Where an indigent representation fee is imposed by a court, no fee agreement has been entered into between the lawyer and client, and a writing is not required.

Rule 6.5, Nonprofit and Court-Annexed Limited Legal Services Programs, has been replaced in its entirety. You can read the new rule, effective January 1, at Rule 6.5.

Superior Court Rule 9A amended; Rule 30B added, effective January 1

The SJC has amended Superior Court Rule 9A(b)(5)(ii) and (iv) effective January 1, 2013. In addition, they have added a new Superior Court Rule 30B: Certification of Expert Disclosures, also effective January 1.

New Animal Control Law Effective Today

St.2012, c.193: An Act Further Regulating Animal Control is effective October 31, 2012. This new law establishes the Homeless Animal Prevention and Care Fund with a voluntary check-off donation on income tax returns. Prohibits declaring a dog dangerous solely based on the breed of dog. Also regulates health certificates for dogs and cats brought into or sold in Mass, kennel licenses, nuisance and dangerous dogs, euthanasia, animal cruelty, protection for animals in domestic violence restraining orders and more.

You can find a nice summary on the TuftsNow blog post, What's in the New Massachusetts Animal-Control Law?, and more on this and many other laws at our Mass. Law About Animals.

Civil Rules 5, 54 and 55 Amended Effective January 1

In response to the Supreme Judicial Court’s decision in Hermanson v. Szafarowicz, 457 Mass. 39 (2010), three civil rules have been amended effective January 1, 2013: Rule 5(a), Rule 54(c), and Rule 55(b)(2). The Reporter's Notes to Rule 55 provide clarification and say in part:

"The Hermanson case dealt with the conflict between G.L. c. 231, § 13B, which limits a plaintiff’s ability to demand a specific monetary amount in a complaint, and Rule 54(c), which provides that a default judgment may not exceed the amount requested in the demand for judgment."

"[After much deliberation,] the Standing Advisory Committee recommended to the Court, and the Court adopted, an approach that requires the party seeking a default judgment to provide advance notice to the defendant of the nature and type of damages sought that are not a sum certain. This approach required amendments to three rules: Rules 5(a), 54(c), and 55(b)(2)."

Law Libraries Close at Noon Today; Reopen at Noon Tuesday

The Mass. Trial Court has announced that courts will close at noon today, Monday, and reopen at noon on Tuesday, due to Hurricane Sandy. Therefore, the law libraries will be closed and no online services will be available during those hours. Stay safe!

Update: The Lowell Law Library will be closed all day Monday.

Comments Requested on Proposed Changes to SJC Rule 4:02

The SJC Standing Committee on Pro Bono Legal Services is requesting input on proposed changes to SJC Rule 4:02. "The proposed amendment would allow Massachusetts-based in-house counsel who are admitted to practice and in good standing in jurisdictions outside of the Commonwealth, to perform pro bono legal services in Massachusetts."

"Comments should be directed to The Standing Committee on Pro Bono Legal Services, c/o Carol Lev, Supreme Judicial Court, John Adams Courthouse, One Pemberton Square, Boston MA 02108 on or before Friday, November 9, 2012.  Comments may also be sent to carol.lev@sjc.state.ma.us."

Law About the Paranormal

Just in time for Halloween, we've added a new page on Mass. Law About the Paranormal, which includes links to pages about buying and selling haunted houses, witch trials and more.

Damages for Injury to a Dog

This summer, the District Court Appellate Division heard a case (Irwin v. Deresh, 2012 Mass. App. Div. 142) in which a dog was attacked and injured by a second dog, and the question of appropriate damages was addressed. The court declined to hold that damages should be limited to the "diminution in value of the dog", or the fair "market value of the dog." Instead, the court held that the plaintiff could recover reasonable veterinary costs for the dog's treatment, in excess of $8,000, saying,

"Without romanticizing the relationship between a domesticated animal and its owner, we find that household pets, and dogs in particular, belong to a unique category of personal property ... Determining damages in the case of injury to a dog involves different considerations than with other types of personal property. A dog should not be placed in the same category as an automobile or appliance, whose market value and replacement cost can be determined with a high degree of accuracy. Limiting damages to the market value of a dog or measuring damages by the diminution in market value would not be a fair and reasonable measure of the owner’s loss....

"Awarding plaintiffs the reasonable amount paid in veterinary costs was well within the trial court’s proper exercise of discretion and wholly consistent with the goal of returning the plaintiffs to the position they were in prior to the wrongful conduct."

Pro Bono Legal Services to be Offered by Retired Lawyers

The Access to Justice Commission has started a new program that will pair senior lawyers (retired and nearly retired) with nonprofit and legal service organizations to provide assistance to those who need it.  Last week, South Coast Today did a nice story about one of these "Pro Bono Fellows," Eileen Sorrentino,  Retired Mattapoisett lawyer volunteers to help start free legal services program. It says, in part:

"The 69-year-old Mattapoisett lawyer said she plans to work with retired Middlesex County Probate Court Judge Edward Ginsburg, the founder of Volunteer Lawyers Project/Senior Partners for Justice, to offer legal services in Bristol County's three probate courts." 

"She said it hasn't been decided if the program will be launched in New Bedford, Fall River or the Taunton probate courts. But Sorrentino said the hope is that after it is up and running, the program will be replicated in the other two probate courts."...

"Sorrentino envisions enlisting the services of a group of lawyers who will go into the probate courts and represent indigent clients for free once or twice a month."...

"She said many clients don't understand their legal rights or don't know what they're doing. "They don't know how to navigate the system," she said, adding she wants to be there to guide them. "

It will be very exciting to see this program develop over time and across the state.

Update on Middleborough Profane Speech Bylaw

Back in June we reported on a new Middleborough bylaw which changed the enforcement of existing bylaws, including one that banned profanity. On October 9, the Attorney General upheld the new bylaw, but chose to comment on the older bylaws, which were not up for review. She said:

"The seven underlying by-laws – including the public profanity by-law – are not before us. However, specific portions or potential applications of the public profanity by-law and two of the other seven  – approved many decades ago by prior Attorneys General – now violate the First Amendment’s free-speech guarantees. They should be repealed or amended..."

...

"The seven  by-laws referenced in Article 24 were previously adopted at Town Meeting and approved by the Attorney General, in certain cases over 80 years ago. There is no statutory authority for the Attorney General to act on these previously approved by-laws after the 90-day time period of G.L. c. 40, § 32 has elapsed.  Concord v. Attorney General, 336 Mass.  at  26... Nonetheless, because of the law’s development since the adoption of the by-laws, we offer the following strong  cautions regarding the use of Article 24 to enforce certain  unconstitutional  provisions  or applications  of  three of  the by-laws. We also  urge the Town to consult with Town Counsel regarding a repeal of the unconstitutional provisions in the by-laws, and amendment of the provisions which risk an unconstitutional application." 

Have you registered to vote?

Wednesday, October 17th is the last day to register to vote for the November 6th State and Presidential elections. Visit the Secretary of the Commonwealth's site for full information on how to register to vote, as well as information on the 2012 ballot questions and information on the State and Presidential candidates. Visit our website for more information on the Massachusetts Law about Elections and Voting.

Leveraging Technology in the Small Law Office Brown Bag Seminar

Next Thursday, September 27, 2012, the Norfolk Law Library Foundation will be hosting a free program, Leveraging Technology in the Small Law Office, featuring Steve McDonough, from 12:00-2:00 pm in the library. Steve is an attorney, mediator and owner of The Divorce Collaborative LLC.

There is no charge, but please RSVP to nllfoundation@gmail.com. Bring your lunch; beverages will be provided. The Norfolk Law Library is at 649 High Street in Dedham. We look forward to seeing you!

Consent is No Defense to Assault and Battery During Sexual Activity

The SJC reiterated last week, in Comm. v. Carey, that consent is not a defense to assault and battery with a dangerous weapon, even if it happens during consensual sexual activity. The defense had argued that the SJC case of Commonwealth v. Appleby, 380 Mass. 296 (1980), which held that consent was not a defense to assault and battery in a sadomasochistic encounter, was no longer valid in light of the Supreme Court case Lawrence v. Texas, 539 US 558 (2003), which held that "liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex."

The court disagreed, quoting Appleby: "The fact that violence may be related to sexual activity (or may even be sexual activity to the person inflicting pain on another ...) does not prevent the State from protecting its citizens against physical harm."

For more on the issue of consent to violence during sex, see Hanna, Sex Is Not A Sport: Consent and Violence in Criminal Law, 42 B.C. L.Rev. 239, 261 (2001), or Bergelson, Consent to Harm, 28 Pace Law Review 683 (2007-2008). [Consider visiting one of our law libraries to download the HeinOnline App to view these on your iPad, or just request them for no charge from our document delivery service.]

****
But what happens if there is no assault and battery, but someone just gets hurt? The Appeals Court defined the standard of care required in sexual encounters in Doe v. Moe, 63 Mass. App. Ct. 516 (2005). In this case, one party was injured during consensual sexual intercourse, and sued the other. The court ruled, "While it is inappropriate and unworkable to hold consenting adults to a standard of reasonable care in the conduct of private consensual sexual behavior, we conclude that it is appropriate that they be held to a standard that requires them not to engage in wanton or reckless conduct toward each other during such consensual sexual conduct."

SJC Rule 3:03 Amended

Effective October 15, 2012, there are two small amendments to Supreme Judicial Court Rule 3:03:

1. Adds Probate and Family Court to the list of court departments in which a law student may appear, and

2. Adds Agency Counsel or Assistant Agency Counsel to the list of those who may supervise the student.
The new and old text are both available at SJC Rule 3:03.

Massachusetts Criminal Practice, 4th ed.

The full text of Massachusetts Criminal Practice, 4th ed., edited by Eric D. Blumenson and Arthur B. Leavens, is available on the web:  http://www.law.suffolk.edu/MCP/download.cfm

New Open Meeting Regulations

The Attorney General has issued a press release   explaining some important new changes to open meeting regulations at 940 CMR 29 .

"One clarifies the regulation that allows adopting authorities to set consistent restrictions, reflecting their unique priorities and concerns, on the use of remote participation by members of public bodies. The other regulation provides additional guidance on the types of conduct that may be considered evidence of an intentional violation of the Open Meeting Law."

The first of the two changes became effective August 3; the second will be effective September 14.

New Guardianship Form and Procedure

The Mass. Probate and Family Court has announced "the release of form MPC 829 Notice of Intent to Admit to a Nursing Facility for Short Term Services and MPC 955 Instructions, for completing and filing the form.   The form is available for use on or after Monday, August 27, 2012."

The court's press release describes the new law and the conditions under which the new form should be used.

New Uniform Trust Code and MUPC Amendments

Just when we were getting a handle on the new MUPC, it has been changed once again. Earlier this week, Governor Patrick signed St.2012, c.142, An Act Further Regulating the Probate Code and Establishing a Trust Code, which amends the Uniform Probate Code and creates a new c.203E: Uniform Trust Code, effective July 8, 2012. Fortunately, the Boston Bar Association Trust and Estate Section's blog has done a great job of highlighting both what's new in the Uniform Trust Code and what has changed in the Uniform Probate Code. A million thanks!

In addition, the Mass. Probate and Family Court has issued a new Uniform Fee Schedule, effective July 9, 2012.

You can find links to more sources on estate administration and trusts at Mass. Law About Wills and Estates and Mass. Law About Trusts.

Consent of All Adult Children for Cremation

In Burney v. Childrens Hospital, 169 Mass. 57 (1897), the court recognized that next of kin have a right to possession of a decedent's body.  "a right of possession is recognized, which is vested in the husband or wife or next of kin, and not in the executors." 
In O'Dea v. Mitchell, 350 Mass. 163 (1966), the SJC held that a child's right as next of kin vests "only when there is no surviving spouse or no contrary provision by the decedent concerning the disposition of his remains." 
As a result of these and other cases, it appears that there is a consistent practice in the Massachusetts cremation industry to require the consent of the surviving spouse, or, if there is none, of all adult children to a cremation. 

Obviously, getting the written consent of siblings who may be far apart, geographically or philosophically, can be difficult. The following is from the Funeral Consumers Alliance of Eastern Massachusetts:

"Order for Cremation or Interment

This form, required by the crematory or cemetery, is provided and filled out by the cemetery or crematory staff, and signed by the next of kin requesting cremation.

Order of next of kin--spouse, or, if none, then children (all adult children must sign, and if sending in authorization by fax it must be notarized and the original sent by mail, if from another country consulate should verify the identity)"

That organization recommends that those wishing to be cremated after death obtain a form called "Declaration of Intent Regarding Cremation"  from a crematory, so that they can spell out their wishes and appoint someone to authorize the cremation.

You may also want to discuss your wishes with your estate planning or elder law attorney, so that they can draft the appropriate documents. More information on this and other topics related to death, is available at Mass. Law About Burial, Cremation and Funerals.

Criminal Rule 14 has been amended

The SJC has announced amendments to MRCrP 14, effective September 17, 2012. The amendments alter the procedure for cases in which mental health issues are involved (Rule 14(b)(2)), and those involving self-defense and first aggressor issues (Rule 14(b)(4)). As a result of the changes to Rule 14, Rule 23 has been deleted effective September 17.

New Ebook: Mass. Model Criminal Jury Instructions

We've added a new free ebook to our collection: the Mass. District Court's Model Criminal Jury Instructions. This book joins the eight other free ebooks we've created to make your legal research easier. You can download the book to your smartphone, tablet or ebook reader and have access to the jury instructions anywhere you go, even if you don't have internet access. See our ebook page for links and installation directions.

Note: This ebook is very large (over 1300 pages) and takes a bit longer than our other ebooks to download.

Our Chat Service Isn't Ending!

We use a product called Meebo to provide an interface for chat service on our website, where we can answer your questions in real time. Google recently acquired Meebo, and then promptly decided to end the service effective July 11. That is why our users see the notice "MeeboMe is being discontinued" on our Ask a Librarian page.

It is the providers of the little box that are ending service, not the libraries. Please rest assured that we will have a replacement for Meebo in place before July 11, a (slightly different) little chat box will be where it has always been, and online chat will continue as always. And if, for some reason, chat gets a little flaky in the interim, you can always send your questions by email. We have a staff of librarians still happy to help.

Profanity in Massachusetts

Middleborough did not recently outlaw profane speech. The bylaw prohibiting profanity has been on their books since 1968. It says:

"Whoever having arrived at the age of discretion accosts or addresses another person with profane or obscene language in a street or other public place, may be punished by a fine of not more than $20.00 dollars."

What Middleborough town meeting passed on Monday was a new bylaw making the old one easier to enforce. Article 24, section 2 Non-criminal disposition bylaw utilizes MGL c 40, s.21D  to make it easier for the police to enforce the existing rule. This says, in part, "the enforcing person..., as an alternative to initiating criminal proceedings, may give the offender a written notice to appear before the clerk of the district court..."


It is interesting to note that Massachusetts still has at least two state laws on profane or blasphemous speech.

MGL c.272 § 36.  Blasphemy

Whoever wilfully blasphemes the holy name of God by denying, cursing or contumeliously reproaching God, his creation, government or final judging of the world, or by cursing or contumeliously reproaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars, and may also be bound to good behavior.

and MGL c.272,  § 36A  Profane, Obscene or Impure Language or Slanderous Statements Directed at Participant or Official in Sporting Event

Whoever, having arrived at the age of sixteen years, directs any profane, obscene or impure language or slanderous statement at a participant or an official in a sporting event, shall be punished by a fine of not more than fifty dollars.

New SJC Rule on Cameras in Court Effective Date Delayed

The SJC announced yesterday that SJC Rule 1:19, originally slated to become effective July 1, will not take effect until September 17, 2012. According to the press release, the delay is "to allow the courts additional time to prepare for its implementation...Judges, clerks, and security personnel in 101 courthouses throughout the state will receive information and training in the coming months and will develop protocols to comply with the rule’s provisions.  Newly hired and promoted court officers and associate court officers in the Trial Court will be included in the upcoming training sessions."

"Among the major changes are the following:

  • The news media are defined as those who are regularly engaged in the reporting and publishing of news or information about matters of public interest.  This would include citizen journalists who meet this standard.
  • The news media are allowed to use laptop computers and other electronic communication devices inside courtrooms if they are not disruptive to the proceedings.
  • Those seeking to cover the courts using the permitted technology are required to register with the Public Information Officer of the Supreme Judicial Court, confirm that they meet the definition of news media and agree to follow the provisions in Rule 1:19.  In addition, registered news media must request permission from the court prior to using electronic devices in the courtroom.  A judge has the discretion to permit electronic access by a person who has not registered.
The Public Information Office is developing an online registration system for the news media and will be announcing those procedures soon.
  • In addition to one video and one still camera, a second mechanically silent video camera is allowed for use by media other than broadcast television and still photographers.
  • Motions to suppress may be electronically recorded.
  • If news media ask to record multiple cases in a session on the same day, a judge may reasonably restrict the number of cases that are recorded to prevent undue administrative burdens on the court.
  • The rule applies to clerk magistrates conducting public proceedings. "

Same-Sex Spousal Health Benefits

Here's a guide we've found helpful:

Same-Sex Spousal Health Benefits In Massachusetts After Goodridge, GLAD, November 2011. Covers private sector, public sector, federal employees, self-employed, COBRA, those who work outside of Massachusetts, and more. 

From the Introduction:

Although this publication was originally created only to deal with married same-sex couples living in Massachusetts, most of the legal information contained in this publication can be applied to states which recognize the marriages or civil unions of same-sex couples. If you have specific questions, please contact GLAD’s Legal InfoLine at 800-455-GLAD (4523).

Thanks, GLAD!

New CORI Law and Procedures for Sealing Records

Two new and really helpful sources on record sealing:

Know Your CORI Rights: Criminal Records Sealing and CORI Reform, Greater Boston Legal Services, 2012. Questions and answers on sealing your record, how to do it, when, why, and when it may not be necessary.
and
CORI Law Changes Effective May 4, 2012 (District Court Transmittal 1083), Mass. District Court, May 2, 2012. This 8-page document "summarizes the provisions pertinent to the District Court that are effective May 4, 2012, such as changes to the sealing law and the creation of new crimes." Includes forms.

These and many more links to information about the new CORI Law are available at our Mass. Law About Criminal Records.

Are you new to eBooks?

We've heard from lots of people who want to try our new court rules ebooks, but are unfamiliar with or intimidated by the process of downloading and installing them. This Thursday May 31, at 1:00, we are offering a free brown bag lunch at the Lawrence Law Library that will offer hands-on assistance in getting the ebooks on your device. So come, bring your lunch and your ipad/tablet/smart phone, and leave with Massachusetts court rules in the palm of your hand! Go to our instructions page to do it yourself!

Mass. Bar Association Task Force Report Recommends More Practical Experience for Law Students

The Massachusetts Bar Association Task Force on Law, the Economy and Underemployment issued a report, "Beginning the Conversation," that discusses the reasons and potential solutions for the underemployment of recent Massachusetts law school graduates.  One recommendation was for more practical experience and externships for law students.  Another suggestion was to enhance transactional training through legal writing programs. 

Criminal Records reform effective May 4th, 2012

The CORI reform legislation from 2010 has another key deadline next week. Major changes go into effect that will affect people with criminal records, and most importantly, employers. Jackson Lewis has written a 15 page summary that focuses on the changing requirements for employers. The requirements include written policies, when and how you can use a CORI record in hiring, obligations to job applicants and recordkeeping, dissemination and destruction requirements. Another review of the changes in a table form has been compiled by the ACLU of Massachusetts. After the changes go into effect, people with CORI records will no longer have to request their records be sealed. The law will now prohibit the dissemination for convictions after a specific waiting period. The department that oversees the criminal records is now called the Department of Criminal Justice Information Services (DCJIS). Their website has links for Implementing CORI Reform, proposed regulations, and forms, applications and model policies. The new system of criminal records, iCORI, won't be available until after May 7th, according to the department. All requests will be managed online. For more information about criminal records, don't forget our Law About Criminal Records page.

eBook of Juvenile Court rules and standing orders

We have completed our eighth eBook of court rules for your smart phones and tablets. Our page of instructions walks you through the process of installing a reader app, then downloading the books. After they are downloaded to your device, you will have instant access to the rules and the Guide to Evidence, complete with search capabilities, note taking and highlighting. To date the rules have been downloaded nearly 1100 times. Be part of the mobile revolution. Take the law in your own hands! Feel free to contact us with questions or suggested new titles.

In honor of Earth Day...

We thought we might highlight some of our topical pages today. If you have trouble with a tree, see our page on Neighbors and Trees. Celebrate at the beach and visit our Beach and Shoreline access page. We also have a page on Recreational Hunting and Fishing! And if you want to leave your car behind today, see our page on Bicycles. For the rest of our Law About topics, see our full list here.

Land Court Rules Ebook

The Massachusetts Land Court Rules ebook is now available for no charge from our ebooks page. This new title is the most extensive yet, including not just the Rules, but also Land Court Standing Orders, the Manual of Instructions and the Guidelines on Registered Land.

Probate Court posts Uniform Probate Code website

The Massachusetts Probate Court has posted a variety of resources on a single page that may be useful to anyone addressing the changes to the probate code in Massachusetts. The page includes links to forms, fee schedule, a new MUPC Procedural Guide, the transitional standing order and links to the statutes as well. In addition it has as a list of newspapers for informal publication, priority of appointment checklist, an heirs chart, settlement & distribution chart, list of local experts for MUPC.
Don't forget our page on Probate Law as well.

Chat is back up and running

Sorry for the disruption.

Chat Service down at this point

We are working on it and it should be back working soon.

New cases of note

From the federal district court, Judge Wolfe approves a settlement involving DOC and the isolation of mentally ill prisoners : Disability Law Center v. DOC
From the SJC :
Breastfeeding mother should have more time for exam in Currier v. National Board of Medical Examiners.
Change of venue for a juvenile trial in juvenile court upheld in Com. v. Tobias.
Three cases on Firearms :
From the Federal district court, Immigrants with lawful permanent resident status cannot be deprived of right to gun license in Fletcher v. Haas.
Conviction of unlawful possession of firearm upheld, and burden of proof rests with defendant for affirmative defense in Com v. Grouse
Antique firearm possession defense required vacation of conviction in Com. v. Jefferson

Testimonial and Non-testimonial Evidence

We've added a new page on the Law About Testimonial and Non-Testimonial Evidence in Criminal Cases. This page is designed to get you started on your research on the topic, with links to both cases and print sources.

Strip Searches decision from Supreme Court

The country is abuzz with the recent Supreme Court case Florence v. Burlington. (It's actually Florence v. Board of Chosen Freeholders of County or Burlington, but...) The decision makes it legal to perform strip searches when any person is taken into custody, regardless of the circumstances.
In Massachusetts, the standard remains that probable cause must be present before strip searches (removing all clothing) and visual body cavity searches can be conducted. Cases cited include Com. v. Prophete, Com. v. Thomas, and Com. v. Ramirez.
Check our page on Criminal Law, and don't forget to download the Massachusetts Guide to Evidence eBook to your phone or tablet.

Comments Sought on Proposed Amendment to Appellate Procedure Rule 4

The SJC 's Standing Advisory Committee on the Rules of Civil Procedure seeks comments by April 27 on a  proposed amendment to Mass. R. A. P. 4(a) dealing with post judgment motions.  

"The proposed amendment addresses the motions that toll the time period for appeals.  The amended section states that motions to alter or amend judgment under Rule 59 or motions for relief from judgment, however titled, would stay the time for taking an appeal as long as the motions are served within ten days after entry of judgment.  The amendment makes clear that the substance and not the title of the motion should control.  As stated in the Reporter's Notes, "a post-judgment motion seeking to correct an error of law, whether titled as a motion to alter, amend, or vacate, for relief from judgment, or for reconsideration, if served within ten days, will extend the running of the time period to file a notice of appeal." 

"The Committee solicits and welcomes comments from the bar prior to presenting its recommendation to the Rules Committee of the Supreme Judicial Court .  Comments should be directed to Christine Burak, Supreme Judicial Court, John Adams Courthouse, One Pemberton Square, Boston 02108 or to christine.burak@sjc.state.ma.us on or before April 27, 2012. " 

Mass. Guide to Evidence Ebook

We heard you! After requests from many readers, we have added another ebook to the Mass. Court Rules collection: the Massachusetts Guide to Evidence. This is the complete text of the Guide to Evidence formatted for your mobile device or ebook reader. If you haven't used one of our ebooks before, start with the directions. If you already know how it works, just get the file. We hope you'll find it useful, and as always, feel free to send us questions or comments.

Comments Sought on Proposed Changes to Civil Rules 5, 54, 55

The Supreme Judicial Court is soliciting comments on proposed changes to Mass. Rules of Civil Procedure 5, 54, and 55. The proposed amendments are a response to the SJC's decision in Hermanson v. Szafarowicz, 457 Mass. 39 (2010).

"The Hermanson case dealt with G.L. c. 231, § 13B, which prohibits a demand for a specific monetary amount in a complaint (unless the damages "are liquidated or ascertainable by calculation and a statement under oath" accompanies the complaint) and the first sentence of Mass. R. Civ. P. 54(c), which provides that a default judgment may not exceed the amount requested in the demand for judgment.

"The Court ruled that there was an "irreconcilable conflict" between the statute and the court rule, and accordingly, the statute prevailed over the rule. As a result, the language of Rule 54( c) that provided for a ceiling on the amount of a default judgment that may enter against a defendant was rendered ineffective. The Court noted, however, that the ineffective first sentence of Rule 54( c) served the "sound" policy of allowing a defendant, served with a complaint, to make a reasoned decision whether it might be financially worth a default rather than defending the case."

 After review, the Standing Advisory Committee on the Rules of Civil and Appellate Procedure

"recommended to the Court, and the Court adopted, an approach that requires the party seeking a default judgment to provide advance notice to the defendant of the nature and type of damages sought that are not a sum certain. This approach required amendments to three rules: Rules 5(a), 54(c), and 55(b)(2)."

Comments on the proposed amendments should be sent to Christine Burak, Supreme Judicial Court, John Adams Courthouse, One Pemberton Square, Boston 02108 or to christine.burak@sjc.state.ma.us on or before April 27, 2012.

Mass. Rules of Court in E-Book Format

We are delighted to announce that we have reformatted Massachusetts court rules as eBooks, so that you can use them even when you don't have Internet access. Thus far, we have the Massachusetts Rules of Civil Procedure, Criminal Procedure, Appellate Procedure and Domestic Relations Procedure. The files are available for no charge in both epub and kindle formats.  See our eBooks page for links to the rules and directions for downloading.

Because this is a new project for us, we are asking for feedback. In particular, we need information on the installation process. While we have installed the files on our own personal devices (and those of our family members), the process has been slightly different in each situation, so we need more data points to help us improve directions for the public. Please send comments to meg (dot) hayden (at) gmail (dot) com. Thanks!

New Alimony Law Effective Tomorrow

The Massachusetts Alimony Reform Law becomes effective tomorrow. See Mass. Law About Alimony for links to the law and websites that explain it.

Comments Sought on Proposed Pro Hac Vice Rule

The SJC is soliciting comments on proposed new Supreme Judicial Court Rule 3:15: Pro Hac Vice Registration Fee.  According to the court:

"The new rule was originally proposed to the Rules Committee by the Massachusetts Access to Justice Commission in response to the crisis in funding civil legal aid services to low-income families and individuals.  

"The proposed new rule would require lawyers, except those who will provide pro bono service to indigents, to pay a $300 registration fee per case to the Board of Bar Overseers.  The Board may retain a portion of the fee to cover costs, and shall pay the balance to the IOLTA Committee for distribution in accordance with S.J.C. Rule 3:07." 

Send comments by March 9, 2012 to christine.burak@sjc.state.ma.us or mail to: Christine P. Burak, Secretary, Supreme Judicial Court Rules Committee, Supreme Judicial Court, John Adams Courthouse, One Pemberton Square, Boston, MA, 02108.

District Court Dept. Mental Health Standards

Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness have been revised effective January 3, 2012.  The Standards cover the issues of civil commitment and authorization of medical treatment in great detail. According to the document,

"Unlike rules of court, the Standards of Judicial Practice are not mandatory in application. They represent a qualitative judgment as to best practices in each of the various aspects of the civil commitment procedure.  As such, each court should strive for compliance with the Standards and should treat them as a statement of desirable practice to be departed from only with good cause."

 The standards and other information on mental health proceedings are available at our Mass. Law About Mental Health.

New FCC Telemarketing Rules

On Wednesday, the FCC issued Report and Order FCC 12-21: In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991. According to the FCC,

The Order adopted today helps put an end to these intrusions by empowering consumers with increased rights under the FCC’s telemarketing rules.  The new rules reduce regulatory uncertainty with minimal burden on industry and maximize consistency with those of the Federal Trade Commission.  Specifically, the rules protect consumers by:

• Requiring telemarketers to obtain prior express written consent from them, including by electronic means such as a website form, before placing a robocall to a consumer;         
• Eliminating the “established business relationship” exemption to the requirement that telemarketing robocalls to residential wireline phones occur only with prior express consent from the consumer; 
• Requiring telemarketers to provide an automated, interactive “opt-out” mechanism during each robocall so that consumers can immediately tell the telemarketer to stop calling; and, 
• Strictly limiting the number of abandoned or “dead air” calls that telemarketers can make within each calling campaign.

The provisions of the new rules take effect over the next year. For specific information on effective dates, see paragraph 66 of the order.

Hein Online iPhone/iPad App for Law Library Users

If you visit one of our law libraries at least once every thirty days, you can use the new HeinOnline App. Here's how:

1. In the iPhone/iPad app store, download and install HeinOnline 2012. The app is free.
2. Go to one of the law libraries, and connect to the wireless network within the library. The network will be named "lawlibrary" or lawlibrary followed by a number.
3. Once you are connected, open the HeinOnline app. Click on "IP Authentication." This will authenticate you via the library's IP address. You will be able to use the app for thirty days.
4. At least once every thirty days, go back to a Mass. law library and follow steps 2 and 3 again. This will keep the app working for you. 

HeinOnline is Working!

Thanks for your patience. Remote access to HeinOnline for our library cardholders is functioning once again.

Databases are Back Up

Remote access to all databases but HeinOnline is functioning. We're working with HeinOnline to figure out the problem.

Immigration Consequences of State Convictions

We've added a new page, Immigration Consequences of State Convictions, which links to sources regarding the consequences of Mass. state criminal convictions on immigration status.

Our Remote Databases are Down

We are having trouble with our authentication service and right now remote access to the databases, including Retrievelaw and HeinOnline, is not available. In-library databases are still available. We'll let you know when the problem is resolved, and apologize for the inconvenience.

New 209A Guidelines and Forms

New c.209A Forms became effective on Tuesday, and Mass. Legal Help has a new page that does a great job of explaining the guidelines issued in September in easy to understand language. They also provide links to the forms in a larger, more readable font. For more information on domestic violence laws and procedures, see our Law About Domestic Violence.

New Alimony Page

With the new alimony law effective in less than two months, we've added a new page, Law About Alimony. Please let us know of any great sources we can add.

Use of Hand-Held Mobile Phones by Commercial Drivers Restricted

Effective January 3, 2012, new Federal regulations (76 FR 75470, amending 49 CFR Parts 177, 383, 384, 390, 391, and 392)  prohibit most use of hand-held phones by commercial motor vehicle drivers. In Massachusetts, regulations of the Federal Motor Carrier Safety Administration are "incorporated by reference as the regulations of the Registry of Motor Vehicles" under 540 CMR 14.03.

According to the Secretary of Transportation, "The final rule prohibits commercial drivers from using a hand-held mobile telephone while operating a commercial truck or bus. Drivers who violate the restriction will face federal civil penalties of up to $2,750 for each offense and disqualification from operating a commercial motor vehicle for multiple offenses. Additionally, states will suspend a driver's commercial driver's license (CDL) after two or more serious traffic violations. Commercial truck and bus companies that allow their drivers to use hand-held cell phones while driving will face a maximum penalty of $11,000. Approximately four million commercial drivers would be affected by this final rule."

More information on this and other driving regulations is available at Mass. Law About Traffic Violations.

The Latest on MUPC

The Legislature's site is now reporting the bill changing the effective date of the Mass. Uniform Probate Code to March 31, 2012 (St.2011, c.224) was signed by the Governor on December 30, 2011.

MUPC Update

This is confusing, but here is what we think we know about the status of the Massachusetts Uniform Probate Code:

• H3780 as amended by H3861 changes the effective date of the Uniform Probate Code to March 31, 2012. The bill was signed by the Governor on December 30, 2011 and is now St.2011, c.224.
• The new Supplemental Rules of the Probate and Family Court, which replace the former General Rules of the Probate and Family Court and Supplemental Probate Rules are still effective January 2, 2012.
• On December 29, 2011, the Probate and Family Court amended Standing Order 5-11 regarding the application of G.L. c. 190B, Articles I-IV, VI and VII to Estate Cases Pending on March 31, 2012 or with a Decree Issued Prior Thereto  
• The MUPC court forms have been removed, and according to the Probate and Family Court, "The Court’s current (pre-MUPC) forms will continue to be used after January 2, 2012 until further notice."

Probate and Family Court Rules are Up

We've added the new Probate and Family Court Rules to our site. Here's what you'll find:

• New Supplemental Rules of the Probate and Family Court, which will replace the General Rules of the Probate Court and Supplemental Rules of the Probate Court on January 2, 2012
• Amended Uniform Practices of the Probate and Family Court, effective January 2, 2012
• Amended Rules of Civil Procedure,  effective January 2, 2012  

New Probate and Family Court Rules

With the effective date of the Massachusetts Uniform Probate Code (MUPC) just a few weeks away, the Probate and Family Court has issued the following court rules:

• New Supplemental Rules of the Probate and Family Court
• Amended Civil Rules 17 and 72 with Reporter's Notes

The rules are effective January 2, 2012, and will be added to our site in the next few days.

Miranda Waivers

In Comm. v. Hoyt, decided today, the SJC determined that an invocation of Miranda rights was unequivocal in the following exchange:

EASON: "This right here states that you understood everything I just read to you. Having these rights in mind, do you wish to speak to us now?"
DEFENDANT: "I'd like an attorney present. I mean but I can't afford one. So I guess I'll just speak to you now. I don't have an attorney."
EASON: "Okay. If you want to speak to us later, that's fine as well. I mean but we're not, you know, we don't get you an attorney, we can let you use a phone book and stuff like that, but it's up to you."
DEFENDANT: "I'll just talk to you now."
EASON: "Okay."
STROUT: "Roy, I just want to make it clear. You want to talk to us now, and you don't want an attorney?"
DEFENDANT: "Uh, I'd have to wait here until an attorney came right?"
STROUT: "You can ... we can let you use the phone and the phone book to call an attorney. I can't tell you if they're gonna come here, I don't know what they would do."
DEFENDANT: "I'll just talk to you without an attorney." 

The court stated: "In these circumstances, the statement "I'd like an attorney present," in response to the question, "Do you wish to speak to us now?," was an unambiguous invocation of the defendant's right to counsel."

Further, "the defendant not only demonstrated a desire to invoke his right to appointed counsel, but also showed a clear ignorance of the meaning of that right. Any arguable ambiguity in the defendant's invocation was a product of this fundamental misunderstanding of his right to appointed counsel." Therefore, the waiver of the right to counsel could not have been voluntary or knowing.

Impoundment in Criminal Cases

In Globe Newspaper Co., Inc, Petitioner decided yesterday, the SJC clarified procedures for impoundment in criminal cases. This case involved the impoundment of an inquest report. MGL c. 38, § 10  makes specific provision for the impoundment of inquest transcripts, but is silent on inquest reports, and so the court provided guidance on the impoundment of inquest reports specifically, and also on impoundment in criminal cases in general, saying in part:

"We declare under the common law, however, a rule that an inquest report shall be impounded until the transcript presumptively becomes a public document under G.L. c. 38, § 10."
...
To give all interested parties an opportunity to respond before a report or transcript is no longer impounded, "we exercise our superintendence authority to require the extended impoundment of the inquest transcript and report for a period of ten calendar days after the filing of the required notice or certificate by a district attorney under § 10. At the conclusion of this ten-day period, the report or transcript shall be available for public inspection in the absence of an impoundment order or a judicial order pending adjudication of a motion to impound."
...
"In criminal cases, we have declared that the "[p]ractice regarding orders of impoundment entered in criminal proceedings should hew as closely as possible to the protocol established by the uniform rules," and require that appellate review of impoundment orders conform to the uniform rules... We conclude that in the future the practice regarding orders impounding or refusing to impound an inquest report or transcript should also "hew as closely as possible to the protocol established by the uniform rules [of Impoundment Procedure]," and that, as in the uniform rules, such orders may be appealed to a single justice of the Appeals Court."

New and Revised 209A forms

The Mass. Trial Court has issued new and revised forms pursuant to MGL c.209A (Abuse Prevention) effective January 1, 2012. The page also links to Highlights of Revisions to G.L. c.209A Forms Effective January 1, 2012, which lists the changes in the old forms and details the five new forms.

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.