Wages during a State of Emergency

As advised by the Attorney General's Fair Labor Hotline at (617) 727-3465 (lines open from 10 a.m. - 4 p.m.), what an employee must be paid for work if they left early because of the State of Emergency depends upon whether the person is union, salaried, or hourly.  

For union, the employee should refer to the union contract for the answer.  

For salaried, the answer depends on a variety of factors.  They may be owed only for the hours they worked, or for the whole day.  A salaried employee should check with the U.S. Department of Labor for further guidance.  The U.S. Dept of Labor Hotline is (617) 624-6700.  

For hourly employees, 455 CMR 2.03 dictates the minimum pay, and if an employee worked for more than three hours, they must be paid for the time they actually worked.  The employer can force the employee to take sick, vacation, or personal time to make up the remainder of the day that they did not work so that they would be paid for the full day that day.  If the employee doesn't report at all, the employee is owed no pay.  

New law gives temporary workers right to know

Effective January 31, 2013, employment agencies in Massachusetts must provide temporary employees with certain written information before the employees go to a new work assignment.
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The new law also prohibits staffing agencies from certain activities or conduct such as providing false or misleading information to an applicant or employee or charging temporary employees for some services related to employment.

A staffing agency FAQ and a sample fillable job order are available on the Mass. Dept. of Labor Standards website.  DLS also provides a Registered Placement Agency List and a Licensed Employment Agency List there.

Staffing agencies must be either licensed as employment agencies or registered as placement agencies by the Department of Labor Standards in order to conduct business in the state, regardless of whether or not the agency has a physical office within state borders, in accordance with the Employment Agency Law, M.G.L. c. 140, §§46B.

A Supreme Court Justice talks…..

Want to know U.S. Supreme Court Justice Sonia Sotomayor’s background? How she thinks? National Public Radio’s Nina Totenberg has a series of brief, revealing interviews with Justice Sotomayor regarding her memoir, My Beloved World : A Judge Deliberates: Sotomayor on Love, Health and Family , Sotomayor Opens Up About Childhood, Marriage in "Beloved World" , Sotomayor Found Her 'Competitive Spirit' in Gold Stars , and Sotomayor Memoir: Don't Let A Door Stop You . NPR’s Scott Simon interviews her about the importance of books in her life Diane Rehm and her audience have A Conversation with Supreme Court Justice Sonia Sotomayor. And the ABA Journal has a brief report on the book, noting that it will be published in English and Spanish. Good reading!

Authority for Governor’s Travel Ban

Pursuant to the power provided by Chapter 639 of the Acts of 1950, Governor Deval L. Patrick issued a Motor Vehicle Travel Ban by Executive Order. The ban began at 4:00 PM on February 8, and was lifted at 4:00 PM on February 9.

The travel ban issued in anticipation of dangerous conditions caused by winter storm Nemo is the first time that a Massachusetts Governor has used this power to close the roads since the Blizzard of ’78. Former Governor Michael Dukakis banned traffic for a week in February of 1978. He is quoted in a Boston Globe article dated February 9 saying,  “There’s no question that the governor’s doing exactly the right thing – have people home, get them off the streets, and just cool it…If forecasting had been more accurate, I would have started the process” sooner.

Photographs of Route 128 during the Blizzard of 1978 give us something to contemplate.

Legal Research Instructional Program

LEGAL RESEARCH INSTRUCTION PROGRAM

Each year Law Librarians of New England offers an introductory legal research program to those interested in learning how to research US law.

This six-week course is open to all, and has proven especially helpful for librarians, paralegals and legal secretaries. The courses are led by law librarian professionals from a mix of libraries, including Harvard Law School, Boston College Law School, and Goodwin Proctor.

When: Wednesdays, March 13 - April 17, 5:45 pm to 8:00 p.m.

Where: Harvard Law School Library, 1545 Mass Avenue, Cambridge, MA 02138

Cost: $150 per person.

For more information and registration forms, visit: http://aallnet.org/chapter/llne/ilr/index.htm

This year’s course schedule:

3/13 Introduction to US Legal System and Legal Materials

3/20 Case Finding

3/27 Statutory Research

4/03 Administrative/Regulatory Research

4/10 Transactional Law Research

4/17 Research Strategy or “How to put it all together”

Share this announcement with any friends or colleagues who may have an interest.

Send questions to Lisa at Ljunghahn@law.harvard.edu

Did you know that a friend can perfom your wedding ceremony?

While couples are usually married by a member of the clergy or Justice of the Peace, they could also choose to have a friend or family member officiate at their wedding. This person simply needs to apply for a One Day Marriage Designation from the Governor's office.

According to Massachusetts General Laws Ch. 207, sec 39, the Governor can designate non-clergy individuals to solemnize a marriage, such as a friend or a family member.

The application and instructions can be found here. Applications should be submitted at least six weeks but not more than three months before the wedding.

For more information about marriage, please see Massachusetts Law about Marriage.

Discarded hypodermic needles need proper disposal

A 2006 law allows people over age 18 to purchase "sharps" without a doctor's prescription.  Since then hypodermic needle litter has been a danger to the public in the streets and parking lots and also poses a threat to police during pat-downs according to a Barnstable police spokesperson quoted in a recent Cape Cod Times article.  In less than a year there have been two accidental jabbings of police officers during pat-downs there.

 As of July 2012, Massachusetts medical waste regulations forbid disposal of needles in household garbage.  The Massachusetts Department of Public Health gives suggestions for safe disposal containers and a list of designated locations for sharps disposal here. 

SJC Rule 4:02 Amended

SJC Rule 4:02 (9)(b) has been amended effective March 1, 2013 to permit in-house counsel to provide pro bono publico legal services. The new (9)(b) reads:

As used in this section 9, "to engage in the practice of law as in-house counsel" means to provide on behalf of a single organization (including a governmental entity) or its organizational affiliates any legal services that constitute the practice of law. Notwithstanding this limitation, such in-house counsel may provide pro bono publico legal services without compensation or expectation of compensation as described in Rule 6.1 of the Massachusetts Rules of Professional Conduct (S.J.C. Rule 3:07) under the auspices of either (1) an approved legal services organization (as defined in paragraph (8)(c) above) or (2) a lawyer admitted to practice and in good standing in the Commonwealth of Massachusetts.

Motor Vehicle Registration Regulations

Pursuant to Chapter 178 of the Acts of 2012, the Massachusetts Registry of Motor Vehicles has amended the motor vehicle registration regulations (540 Code of Mass. Regulations 2.05) by adding subsections (8)(a) & (8)(b).  An individual registering a motor vehicle or trailer in his or her own name must provide their full name and address, date of birth, as well as a driver's license or a Mass ID card issued under Mass. General Laws chapter 90 sec. 8E or their social security number.  If the applicant does not possess any of these forms of identification, he or she must provide proof of legal residence in Massachusetts.  A list of acceptable documents for meeting the residence requirement is found in the RMV's Driver's Manual.  The new regulations also govern exemptions for out-of-state students, military personnel, senior citizens and disabled persons.

Extended Hours Pilot Program at Brooke Courthouse in Boston

The Boston Municipal Court, Boston Housing Court and Suffolk Probate & Family Court will begin a pilot program by holding certain limited court sessions on two Tuesdays each month until 7:00 p.m. The dates for the first several months are as follows: February 26, March 12, March 26, April 9 and April 23.  The Clerks' Offices and Registry of Probate will not be open to the public during the extended hours.  Information regarding the types of matters that will be available for this pilot, their scheduling, and courtroom locations will be posted to the court website at www.Mass.Gov/Courts by court department, or the courts can be reached as follows: 

Boston Municipal Court	617-788-8600
Boston Housing Court	617-788-8485
Suffolk Probate and Family Court	617-788-8300

Dogs ride for free in Massachusetts

There is currently no fee for a dog to ride in your car in Massachusetts. (Yay!  But read on.)

 If you are wondering whether or not a large dog in the passenger seat can be used to get you free passage in car pool lanes, consider that the only car pool lanes in Massachusetts are free anyway.  They are only created temporarily during rush hours to relieve traffic flow. You can read about high-occupancy vehicle lanes (HOV lanes) at the Massachusetts Department of Transportation, Highway Division website.
However, the Highway Division defines an "occupant" of a vehicle as a human being.  A dog, even a large dog, does not qualify for the purpose of carpooling.

If you are planning to put your dog in the back of your pickup truck, you should know the law about the Safe Transportation of Animals.
   "No person shall transport an animal in the back of a motor vehicle in a space intended for a load on the vehicle on a public way unless such space is enclosed or has side and tail racks to a height of at least 46 inches extending vertically from the floor, the animal is cross tethered to the vehicle, the animal is protected by a secured container or cage or the animal is otherwise protected in a manner which will prevent the animal from being thrown or from falling or jumping from the vehicle. Whoever violates the provisions of this section shall be punished by a fine of not less than $50. "

Cruelty to animals includes the act of anyone who "carries it or causes it to be carried in or upon a vehicle, or otherwise, in an unnecessarily cruel or inhuman manner or in a way and manner which might endanger the animal carried thereon..." 

Still, dogs may have more freedom in motor vehicles than people do.  Adults and children, with some exceptions, must wear seat belts or, if under age 8, child passenger restraints.  You can read those laws here (for adults) and  here (for children under 8).  Dogs are exempt from this.  

So go ahead, pet your dog while you drive. It may do you both some good.  (As long as you drive carefully.)

How we find our law . . .

The Uniform Electronic Legal Material Act (UELMA) has been introduced in the Massachusetts Legislature as House Bill No. 38.  If enacted, this law will ensure that primary source law, including state statutes and agency regulations, will be preserved and permanently available to the public in an unaltered form.

The American Association of Law Libraries played a leading role in getting this Uniform Law drafted and approved by the Uniform Law Commission.

In a recent article in Legal Reference Services Quarterly, Anna L. Endter says “Pro se litigants, in particular, can benefit from UELMA’s framework because it will ensure that the laws they access online via free state-sponsored Web sites are as trustworthy and accurate as their print counterparts.”

UELMA will be working its way through the legislature this session. To access primary source Massachusetts law now, check the links under the heading 

Laws, Regulations, Cases and more...  

at the Massachusetts Trial Court Law Libraries' homepage .

Limited Assistance Representation in the Land Court

Effective January 2, 2013, the New Land Court Standing Order 1-12 provides guidelines for limited assistance representation. 

Limited Assistance Representation (LAR) permits an attorney, either for payment, lesser payment or no payment (pro bono), to assist a self-represented litigant on a limited basis without undertaking a full representation of the client on all issues related to the legal matter for which the attorney is engaged.  

With the implementation of the LAR, a pro se litigant who can't afford an attorney to represent in them in the Land Couirt will be able to hire an attorney for a lesser fee for part of a case and thereby get representation they wouldn’t otherwise have, at a cost they can afford.

The Administrative Office of the Land Court also provides a helpful Limited Assistance Representation (LAR) Information Sheet to answer frequently asked questions.  Look at "Land Court Forms" section for two new forms issued for use with limited representation cases.

For more on representing yourself see our page on Massachusetts Law About Self-Represented Litigants.

 

Probate and Family Court Invites Comments on Rule 412

Chief Justice Paula M. Carey and the Probate and Family Court's Bench/Bar Committee on Rules seeks comments by February 15, 2013 on proposed amendments to Rule 412 of the Massachusetts Supplemental Rules of the Probate and Family Court.  A redlined version of the proposed changes to the rule follows the notice.  According to the court:

          "The proposed changes to Rule 412, Joint Petition for Modification of Child Support               
          Judgment, would expand the rule to allow parties to modify any judgment or temporary       
          order of the Probate and Family Court where the parties are in agreement, the agreement
          is in writing, and all other requirements of the rules are met."

"Comments on the proposed amendments should be directed to the Probate and Family Court Bench/Bar Committee on Rules, c/o Evelyn Patsos, Esq., and sent via facsimile to (617) 788-6605 or by email to evelyn.patsos@jud.state.ma.us on or before Friday, February 15, 2013."

More on modifications is available at our Mass. Law About Modifications of Divorce, Child Support and other Family Law Judgments and Orders.

 

It's Marmot Day in Alaska

Goundhog Day is not a legal holiday in the lower 48 states. In Alaska, Senate Bill No. 58, "An Act Establishing February 2 of each year as Marmot Day" was signed into law by then Governor Sarah Palin in 2009.
Massachusetts legal holidays are listed by the Secretary of the Commonwealth, and defined in M.G.L., c. 4, § 7 (18).



(image via leo-seta)

What happens to your Twitter, Facebook and e-mail accounts when you’re gone? Have you ever wondered what happens to your “digital footprint” when you pass? What about your Internet Privacy Rights in Massachusetts? This is the link to our webpage on Massachusetts Laws about Privacy What if you have children? What are their rights? This link is to the Federal Trade Commission’s FAQ page about the Children’s Online Privacy Protection Rule Thought provoking – would you want your Executor or family members accessing your Facebook page, Twitter account and e-mails or would you prefer these accounts no longer exist once you’ve passed away?

Voir dire, or what to ask?

 When going to trial, a lawyer needs to know who is sitting on the jury. Ask the right questions and you may get a sympathetic jury. Ask the wrong ones, and you miss the fact that one of the jurors has a close relative who is a doctor, and you represent an injured patient. Or belongs to a church that disapproves of alcohol, and your client is facing an OUI charge. This is where voir dire comes into play. 

There are many good books on this subject, and the James Publishing Company has just released a new one, “Pattern voir dire questions” . Written by Susan Broome, Ph.D., it contains the how and why of conducting voir dire, as well as sample questions. This title is available for check-out or interlibrary loan. Just contact your local Trial Court Law Library, or use the online catalog to request a copy.

Mass. Mental health records and FBI background checks

You may have read various reports lately that Massachusetts law prohibits the sharing of mental health records with the FBI for purposes of background checks, in the National Instant Criminal Background Check System or NICS. The Globe has a review of the situation in Massachusetts here. While the state has had mental health laws since 1895, it wasn't until 1970 that we added a provision protecting the records of those with a mental illness. (1970 ch. 888) Governor Patrick has introduced legislation to require participation in the NICS database. A review of the history of disclosure by states is posted here. More information about gun licenses is available at our Law about Guns and other Weapons page. We also have a page on the Law of Mental Health.

SJC Upholds Gun Storage Law

In Comm. v. McGowan, decided yesterday, the Mass. Supreme Judicial Court ruled that the state's gun storage law, MGL c.140, § 131L(a) does not violate the Second Amendment. The court said, in part:

"We hold that, because § 131L is consistent with the right to bear arms in self-defense in one's home and is designed to prevent those who are not licensed to possess or carry firearms from gaining access to firearms, it falls outside the scope of the Second Amendment. As a result, it is subject only to rational basis analysis, which it easily survives. Therefore, we conclude that § 131L (a ) is constitutional under the Supreme Court's holdings and analysis in Heller and McDonald, and that Massachusetts may enforce § 131L (a ) to protect the health, safety, and welfare of its citizens."

More information on weapons in Massachusetts is available at Law About Weapons. More on the McGowan case is available from the Boston Globe.

Drug overdose _no criminal charge if one goes to hospital

Effective August 2, 2012, the law in Massachusetts reads:

Massachusetts General Law ch. 94C, § 34A (2012)
§ 34A. Controlled Substances -- Drug-Related Overdose.

(a) A person who, in good faith, seeks medical assistance for someone experiencing a drug related overdose shall not be charged or prosecuted for possession of a controlled substance under sections 34 or 35 if the evidence for the charge of possession of a controlled substance was gained as a result of the seeking of medical assistance.

(b) A person who experiences a drug-related overdose and is in need of medical assistance and, in good faith, seeks such medical assistance, or is the subject of such a good faith request for medical assistance, shall not be charged or prosecuted for possession of a controlled substance under said sections 34 or 35 if the evidence for the charge of possession of a controlled substance was gained as a result of the overdose and the need for medical assistance.

(c) The act of seeking medical assistance for someone who is experiencing a drug-related overdose may be used as a mitigating factor in a criminal prosecution under the Controlled Substance Act, 1970 P.L. 91-513, 21 U.S.C section 801, et seq. 

(d) Nothing contained in this section shall prevent anyone from being charged with trafficking, distribution or possession of a controlled substance with intent to distribute.

(e) A person acting in good faith may receive a naloxone prescription, possess naloxone and administer naloxone to an individual appearing to experience an opiate-related overdose.

(See Acts of 2012, chapter 192, section 32)

MUTC Advisory and Updated Trust Forms

The Mass. Probate and Family Court Department issued a Procedural Advisory on Trust Matters along with new and revised trust forms on January 24, 2013.  This document provides a summary of the general procedural changes as a result of the enactment of the MUTC, St. 2012, c. 140, sec. 56, effective July 8, 2012.  "Chapter 140 amended various sections of G.L. c. 190B, the Massachsuetts Uniform Probate Code ("MUPC") and incorporated the MUTC as Chapter 203E of the General Laws."  According to the Press Release, the following forms have been added or changed:

"The following new trust forms have been created:Pp

• MPC 275- Statement of Confirmation of a Testamentary Trustee
• MPC 351- General Trust Petition for Appointment of Guardian ad Litem
• MPC 777- Decree and Order on General Trust Petition Appointing Guardian ad Litem
• MPC 266- Petition for Registration/Removal/Appointment of a Successor Trustee
• MPC 782- Decree and Order on Petition for Resignation/Removal/Appointment of a Successor Trustee 
• MPC 267- Petition to Terminate a Trust
• MPC 783- Decree and Order to Terminate a Trust"

"The following trust forms have been revised:

• MPC 201- General Trust Petition
• MPC 857- Petition for Allowance of Account
• MPC 791- Decree and Order of Allowance of Account
• MPC 295- Petition to Modify Bond
• MPC 776- Decree and Order to Modify Bond"

"The following trust forms have been deleted and replaced by form MPC 275- Statement of Confirmation of Testamentary Trustee:

• MPC 275- Petition for Appointment of Testamentary Trustee
• MPC 781- Decree and Order on Petition for Appointment of Testamentary Trustee"

The new and revised forms are included on the Court's main MUPC Forms Page.  More information about the MUTC and MUPC can be found at our Mass. Law About Trusts and Mass. Law About Wills and Estates.

Law Journal Articles with TCLL Borrower's Card

Link to HeinOnline and use your Trial Court Law Library (TCLL) borrower card number to access 1,200 law review articles, the Federal Register from 1936, as well as treaties, statutes-at-large, and US Supreme Court decisions.  If you don't have a card, visit one of the Commonwealth's 17 free public law libraries to fill out an application.  Remember to bring photo ID.  For the hours and locations of these 17 free public law libraries, link to http://www.lawlib.state.ma.us/libraries/index.html

Thinking about divorcing?

Even a no-fault divoce is not a simple process.  Before going to court, learn about Massachusetts divorce basics on our webpage "Law about Divorce."   There are links to forms and instructions, as well as court procedures and rules.  The "Best Bet" is an entire online book written for non-lawyers about divorce, child custody, alimony and other related issues.   All you need is a computer and internet access.

FY2014 State Budget Proposal

On Wednesday, January 23, 2013, Governor Deval Patrick submitted his Fiscal Year 2014 budget proposal to the House of Representatives. The final budget (after it is enacted by the Legislature and approved by the Governor) will take effect on July 1, 2013 and run through June 30, 2014.  The full text is available at www.mass.gov/budget/governor.   For an overview on how the budget moves from a proposed document to law? Read a summary of the budget process provided by http://www.mass.gov/

Check out the Atlas of Historical County Boundaries!

The homepage of the Atlas of Historical County Boundaries has (at the bottom right hand corner) animated the historical development of county, state and territorial boundary lines!

You can select Massachusetts (or any state), and will have use of all these features for each state:
- Interactive map allows you to select a date & view county boundaries on that date (Mass begins w/ 1629).
- The Consolidated Chronology lists everything that has happened to all Mass. county boundaries from 1606 to 1947.
- Individual County Chronologies groups events from each county's boundary history from the Consolidated Chronology.
- Bibliography of sources lists the primary and secondary sources found useful in the historical research of territorial, state, and county boundaries.

And there are other features available to explore on the website.

Publicly accessible estate and administration cases now available electronically

The Probate and Family Court has announced new access to their records through eAccess. Only those cases that are publicly available, and were created in, or coverted to, electronic format will be available.

Tax time

Don't forget to mail your 2012 1099 and W-2 statements to your contractors and employees by January 31, 2013. To order official IRS forms, call 1-800-TAX-FORM (1-800-829-3676) or you can order online. You may file Forms W-2 and W-3 electronically on the Social Security Administration's website . If you are getting ready to file your own taxes, you might find some tips in Deduct It or Easy Ways to Lower Your Taxes. Don't forget to check out the U.S. Master Tax Guide and Bender's Tax Return Manual while you're at it.

Service Animals and Twinkie the Pig

Under the Americans with Disabilities Act (ADA) and Massachusetts General Law c. 272, § 98A, businesses that serve the public are prohibited from discriminating against individuals with disabilities. In Massachusetts discrimination by a business against persons with disabilities is also a violation of the Massachusetts Consumer Protection Act, G.L. c. 93A. Other laws, including fair housing and employment discrimination laws, allow animals other than dogs, miniature horses, and animals that do not have training, such as “emotional support animals” if it is a reasonable accommodation for a disability. What about miniature pigs? According to ABC News, city officials in Coral Springs, Florida were recently asked that very question. The owner of a mini Juliana pig named Twinkie was initially denied an exemption from the city's ordinance prohibiting the keeping of pigs. Twinkie had been doctor recommended as an emotional therapy pet for the owner's disabled son. Many months later, and after requiring family medical documentation, city officials relented and granted Twinkie's waiver. For more information visit our webpage Massachusetts Law About Service Animals.

Martin Luther King, Jr. and holidays

Massachusetts passed it's MLK, Jr. holiday law in March of 1971, as Chapter 6 section 15S of the general laws. The act was Chapter 69 of the Acts and resolves of 1971. While it states that the governor shall proclaim the 15th of January to honor the man, we can find the first record of an executive order on January 8th, 1991 by Governor Weld. The holiday for the memory and work of Martin Luther King Jr. became a federal holiday in 1983, and was first observed in 1986. It wasn't until 2000 when all 50 states recognized the holiday. The list of state holidays and what work can be performed has been compiled by the state Dept. of Labor and Workforce Development here.

Can you carpool with a corporation?

Of course, the bigger question is whether or not a corporation is a person. One could ask the United States Supreme Court (oops, that has already been done, and even the justices could not agree). Or, one could do what most Americans do when a librarian is not available:  ask an "expert".  All in all the question has proven perplexing to many.

However, theSuperior Court in Marin County, California http://www.loweringthebar.net/2013/01/no-you-cant-carpool.html did not have a problem in upholding a citation given to Jonathan Frieman for driving in the car pool lane with only a set of "corporate papers" beside him. For the purposes of section 21655.5 of the California Vehicle Code, a corporation was found not to be a person.

The Massachusetts Department of Transportation has posted information, including frequently asked questions, concerning the Massachusetts Highway High Occupancy Vehicle Program on their website. To date, it appears that no one has asked about corporate riders.

Unemployment Overpayment - What to do?

If you have been overpaid by the Division of Unemployment Assistance, you can apply for a Waiver of Overpayment, as long as no fraud has been committed.  According to Massachusetts General Law chapter 151A section 69(c), you may not be required to repay the money. MassLegalHelp has a great page that will guide you through the process. MassLegalServices has a great explanation of unemployment overpayment. Also, take a look at our Law About Unemployment page.

Live Webcast commemorating Gideon v. Wainwright

The American Bar Association is commemorating the 50th anniversary of Gideon v. Wainwright with a live webcast on Friday, January 18, 2013 from 10:30am to 12:00pm EST.  "This decision recognized a constitutional right to the appointment of counsel for indigent criminal defendants charged with felonies. Mr. Gideon was in prison when he submitted his handwritten petition to the U.S. Supreme Court requesting counsel."

New Consumer Financial Protection Bureau Regulations Strenthen Mortgage Consumer Protection Safeguards

The Ability to Pay determination and the definition of Qualified Mortgages will be tightened as of January 10, 2014. Lenders will be required to use more stringent underwriting standards in assessing whether a borrower can actually repay a consumer transaction secured by a dwelling. The definition of a Qualified Mortgage has also been changed to protect consumers from liability for loans containing balloon payments, interest only payments and terms over 30 years, among other provisions. The Consumer Financial Protection Bureau amended Regulation Z of the Truth in Lending Act in order to implement sections of the Dodd-Frank Wall Street Reform and Consumer Protection Act. For more information about mortgages see our page: Massachusetts Law About Mortgage Brokers and Lenders.

Two new Massachusetts Practice Guides from LexisNexis

Lexis Nexis has recently published two new books as part of their Practice Guide Series.  The first, Massachusetts e-Discovery and Evidence, ..."is the source for in-depth practical guidance on conducting discovery of electronically stored information and successfully using that electronic evidence in federal or state court litigation in Massachusetts in light of the Proposed Amendments to the Massachusetts Rules of Civil Procedure Dealing with eDiscovery."  The second, Massachusetts Pretrial Practice, contains checklists, practice tips, and  forms and covers jurisdiction and venue, preliminary relief, complaints and responsive pleadings, cross claims and interpleader, discovery, summary judgments, and interlocutory relief. 

Massachusetts background check law expanded for school employees, child care workers, adoptive and foster parents

Governor Patrick signed H4307  into law on January 10, 2013 to help protect children.  Under the new law, public and private school teachers, child care workers, school bus drivers, or persons seeking to adopt or become foster parents are required to submit fingerprints for a national background check.  Under the previous law, fingerprints were not required and only a Massachusetts Criminal Offender Record Information check was done.  All newly hired teachers, bus drivers and other school employees who may have direct unsupervised contact with children are required to undergo the national background check before the start of the 2013-2014 school year.  All current employees must undergo the background check prior to the start of the 2016-2017 school year.  See also our law about page on criminal records.

Refund of sales tax on returned merchandise?

This summary of a 2009 post on the Dept. of Revenue's own blog is particularly relevant in the post-holiday season. 

“The law is pretty straightforward: Retailers must refund the sales tax within 90 days of purchase of the item, as long as the consumer has the sales receipt or the retailer is able to verify the purchase from their store in Massachusetts.

After 90 days, the retailer may still return an amount equal to the sales tax, but the state is no longer required to in turn credit or refund the collected sales tax to the retailer, so if the retailer does return the sales tax in this instance, it is coming out of their own pocket.”

Check the 2009 post for additional information.  (Text of Letter Ruling 09-04)

Social Security is going paperless in 2013

Though most payments from the Social Security Administration (SSA) are now being made electronically, there are still 5 Million checks being mailed out monthly. To save money, “the U.S. Treasury will stop mailing paper checks to Social Security beneficiaries on March 1, 2013, when all benefit recipients will then receive their payments by direct deposit to a bank or credit union account or loaded onto a Direct Express Debit Master Card.” Articles summarizing the change: Social Security to Go Paperless in 2013, No More Paper Social Security Checks Come March.  Sign up for direct deposit here.

The SSA's website includes information about signing up for electronic deposits (.pdf and .html versions). The SSA's easy-to-use website includes 2 new links for getting your benefit verification letter on line and your Social Security Statement online, so your Social Security information will be available at your fingertips!

You can also set up your own personal page at My Social Security, allowing you to view an online version of the statement that used to be mailed every year plus estimates of your future retirement benefits, lifetime earnings to date, and the Social Security and Medicare taxes you have paid. Visit the page, answer a series of questions to verify your identity and then create a username and password.

Rule change for written fee agreements

The Rules of Professional Conduct have been amended effective January 1 to require written fee agreements, under Rule 1.5 Where previously, the agreement shall be communicated "preferably in writing", the new rule now states that the agreement "shall be in writing." Any changes to the rate or expenses should also be in writing. For more information on the law of attorneys and for the complete Rules of Professional Conduct see our page on the Law About Lawyers.

CALM Act Regulates Volume of TV Commercial​s

The Commercial Advertisement Loudness Mitigation (CALM) Act,  was enacted on December 15, 2010 in response to consumer complaints about loud commercials. In the (CALM) Act, Congress directed the Federal Communications Commission to establish rules and make mandatory a technical standard  for the volume of television commercials. Effective Dec. 13, 2012, these rules require commercials to have the same average volume as the programs they accompany.  They apply to TV stations, cable operators or other multichannel video program distributors. 

If you hear a commercial louder than the TV show it accompanies, you can file a complaint with the FCC  by providing detailed information about the commercial.

Learn more at the FCC Encyclopedia.

Cross-examination "brush up"

Intererested in improving your cross-examination skills? Some recent titles in our collections may help, for example: MacCarthy on Cross-Examination, Relentless Criminal Cross-Examination, and Take the Witness: the Experts Speak on Cross-Examination. To find additional books, videos and CDs on this or any other topic, try searching our online catalog. You can request a title online and have it sent to your local Trial Court Law Library for pickup. And here's Irving Younger's 10 Commandments of Cross Examination. See if you agree with him....

Abortion clinic buffer zone upheld

Federal appeals court again upholds Mass. abortion clinic buffer zone law. According to a Boston Globe article: A federal appeals court has again upheld the Massachusetts abortion clinic buffer zone law, saying that the regulation protects the rights of patients while, at the same time, allowing others to express their opinions. “... the right of the state to take reasonable steps to ensure the safe passage of persons wishing to enter health care facilities cannot seriously be questioned.” Read the Feb. 2012 case which was upheld on Jan. 9th, 2013 at McCullen v. Coakley, 844 F.Supp. 2d 206.

Socrates to be retried - at last!

       If you missed the first trial, don't worry.  There is still time to sign up for the retrial. 

     On Thursday, January 31, 2013, at 6:00 p.m. the National Hellenic Museum will present the "Trial of Socrates", billed as the "most significant legal appeal in nearly 2500 years."  A posting in the ABA journal, Law News Now,  provides further information on the retrial.  For those interested in "famous trials" the ABA posting provides links both  to a University of Missouri-Kansas City Law School website dedicated to the subject and a Time Magazine list of the "Top Ten Trials That Shook the World."

 

Domestic violence victim bill allows broken lease

Governor Patrick has signed a bill (SB2402)  designed to expand Massachusetts General Law 186 to give victims of domestic violence, stalking, and sexual assault added protection from assailants. This bill will give victims who live in private housing the same protections as residents of public housing. This includes letting them break a lease without penalty. The bill also allows the victims to request timely changing of locks. Landlords may request verification of victim status, but will be required to keep it confidential.

Where in the code are those laws?

The Boston Globe article, "Antiquated state laws stir modern-day worry" http://tinyurl.com/bzzos97 cited many laws, but how do they read? Here are links to the actual laws:

"The Star-Spangled Banner" law can be found at Chapter 264, section 9. http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter264/Section9

Cursing at a sporting event can be found at Chapter 272, section 36A.  http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter272/Section36A

Joining a subversive organization: http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter264/Section19

Declaring the Communist Party is a subversive organization: http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter264/Section16A

And permitting the Communist party to hold a funtion: http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter264/Section22

Committing blasphemy: http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter272/Section36

Consensual sex outside marriage: http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter272/Section14

Spitting on a sidewalk can be found at Chapter 270, section 14. http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter270/Section14

Fornication: http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter272/Section18

Anal sex: http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter272/Section35

FTC Amends Children's Online Privacy Protection Rule

The Federal Trade Commission is changing how it implements The Children's Online Privacy Act of 1998 (or COPPA). The rule is being modified to keep up with changing technology and will become effective on 7/1/2013.

The FTC adopted final amendments to the Children’s Online Privacy Protection Rule that strengthen kids’ privacy protections and give parents greater control over the personal information that websites and online services may collect from children under 13.

See the Statement of FTC Chairman Jon Leibowitz dated 12/19/2012.

For more information, visit our webpage on Law About Internet and Online Privacy.

Domestic Violence Trial Notebook

The Massachusetts District Attorneys Association has just published a new book entitled Domestic Violence Trial Notebook.  "This trial notebook is to aid district court prosecutors in handling the many issues that arise in prosecuting domestic violence cases."  It covers arraignment through sentencing with an appendix of sample motions.

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

Make sure that new wood stove can be used in MA

Residents who are in the market for a wood or pellet stove are cautioned to make sure the model they purchase can be used in Massachusetts according to The Sun Chronicle.  

Wood stoves have been approved for use in Massachusetts if they have a UL approval number 1482, which is located on a metal tag riveted to its side.  Pellet stoves should have a similar metal tag, but should bear an Americans Standard Testing Method number 1509 on it.

Also said factory-built fireplaces, which are rare, but occasionally purchased by residents should have a UL number 127 on them. 

The Official Website of the Executive Office of Public Safety and Security has a list of general requirements along with frequently asked questions regarding wood-burning stoves and other solid fuel-burning heating appliances.

Facebook post not "soliciting" ex-employer's customers

A decision from a Massachusetts Superior Court case is getting national attention on legal blogs, from Massachusetts to California. In Invidia, LLC v. DiFonzo, the court opined that a hairdresser who posted news of her job change on Facebook, was not soliciting clients from her former employer, even though she had signed a Noncompetition Agreement with Invidia. For more information, visit our webpage on Massachusetts Law about Noncompetition Agreements.

Mass. Lawmakers Approve Bill for the Safety of Social Workers

The state legislature this week passed bill, H4254, sponsored by the Joint Committee on Health Care Financing, which seeks to improve safety in the workplace for social workers.  You can find an explanation of the bill at masslive.com.  The bill is now before Governor Deval Patrick, who is expected to sign it into law.

New requirements for motor vehicle registration effective January 1

Proof of Massachusetts residency will be necessary to obtain a registration for a motor vehicle. The new requirements are outlined on the RMV’s website, with a link to a complete list of acceptable documents. A driver’s license number, a Massachusetts ID Card number or a Social Security Number (SSN) is an acceptable document for proof.

Chapter 178 of the Acts of 2012 directs the registrar of motor vehicles to create new regulations no later than January 1, 2013 to implement the new law.  Expect a change in 540 CMR 2.05.

The RMV1 Form should also change to reflect the new law. Registration forms are available from the RMV website.

Ideas for the New Year

According to Boston.com this week, “Walking drunk is one of the biggest New Year’s Eve risks”. If you’re hosting a party, it’s important to know what the Social Host Law is on providing alcohol to minors. If you plan on drinking and enjoying your New Year’s Eve, then you might want to look at our webpage on Massachusetts Laws about Drunk Driving . Best wishes to all our readers for a Happy, Healthy New Year! And if you’re interested, here’s the link to the WebMd site on Frequently Asked Questions on Alcohol and Your Health.

Emancipation Proclamation 150th Anniversary Celebrated

Abraham Lincoln signed the Emancipation Proclamation on January 1, 1863 as a precursor to the abolishment of slavery upon the ratification of the 13^th Amendment of the U.S. Constitution.

The first Watch Night services were held on New Year’s Eve, 1862, in anticipation of the date when slaves were proclaimed free in states in rebellion against the United States. This year, the anniversary of the Proclamation will be celebrated by the National Archives with viewings of the original Proclamation, musical performances, a dramatic reading and panel discussions.

In Massachusetts, the anniversary will be marked in Springfield and Amherst.

Massachusetts Rules of Civil Procedure Change Effective January 1

Rule 5(a), Rule 54(c) and Rule 55(b)(2) have new language as the result of a ruling in a case that prompted the Supreme Judicial Court make changes in the Rules.

 Rule 5(a) “Service: When Required”, Rule 54(c) “Demand for Judgment” and Rule 55(b)(2) “Judgment. By the Court.” were changed as a result of the S.J.C.’s ruling in Hermanson v. Szafarowicz, 457 Mass. 39 (2010). Reporter’s Notes to Rule 55(b)(2)  explain the change, which is effective January 1, 2013.

The Hermanson case dealt with G.L. c. 231, § 13B, which prohibits a demand for a specific monetary amount in a 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 S.J.C. requested the Standing Advisory Committee on the Rules of Civil and Appellate Procedure to review the conflict between the statute and the rule, and suggest a resolution. The Court adopted the Standing Advisory Committee’s recommendation to require the party seeking a default judgment to provide advance notice to the defendant of the nature and type of damages sought, but to not name a sum certain.

Temp Workers Right To Know

Massachusetts’ new law requiring staffing agencies to provide temporary workers with more information regarding their employment will go into effect on January 31, 2013.

Child Care Providers Face New Crib Standards

The U.S. Consumer Product Safety Commission reminds child care providers that effective December 28, 2012, the cribs that child care facilities, family child care homes, and places of public accommodation affecting commerce, provide for use must comply with current CPSC crib standards. 

Massachusetts:Top Ranked Knowledge Economy Leader.

Massachusetts and Delaware stand out as the top performers in the ‘New Economy’ among US states according to L'atelier.  They, and the other leading Knowledge Economy states, boast several major universities and business-friendly corporation law, and invest heavily in R&D and innovation.
Massachusetts, the top-ranked state, “boasts a concentration of software, hardware, and biotech firms supported by world-class universities such as MIT and Harvard.” Second-place Delaware is perhaps the “most globalised of states,” with business-friendly corporation law that attracts both domestic and foreign companies.

Purchasing wine online in Massachusetts

The gift of a special wine is a holiday tradition, but in Massachusetts, purchasing wine online is difficult at best. Currently, only wineries that are licensed by the Alcoholic Beverages Control Commission can sell and ship wine directly to residents, G.L. Ch. 138, c.19F.  Most small vineyards in other states do not go to the trouble of getting this license. Since 2008, wine enthusiasts and vendors have been trying to change this law.
The most recent bill, HB1029, allowing for out-of-state wineries licensed by their own states to sell in Massachusetts, failed to make it to a vote in the 2012 legislative session. The Wellesley Wine Press provides this interesting summary of this ongoing issue.

Confused about fees to appeal a speeding ticket?

The $25 fee to challenge a speeding ticket issued by an officer is clear enough.  The motorist can request a noncriminal hearing on the back of the citation and mail the citation, together with a $25 filing fee, to the registry of motor vehicles at the address indicated within 20 days.  See Mass GL c 90C, § 3[A][4], first sentence.  But the fee to appeal a finding of "responsible" at a magistrate's hearing is not so clear.  The Uniform Rules of Civil Motor Vehicle Infractions states at Rule (b)(3), "There shall be no filing fee for such appeal."  But the District Court's "Frequently Asked Questions" page, at #14, states, "You must pay a non-refundable $20 appeal fee to the clerk-magistrate's office before your appeal to a judge is heard."  Moreover, Mass GL c 90C, § 3[A][4], paragraph 4, states, "Any violator so appealing the decision of a magistrate shall be responsible for paying a fee of $50 prior to the scheduling of the appeal hearing before a justice."  The $50 filing fee is also referenced on the District Court's Filing Fees web page.

Minor Changes Announced to SJC Rule 3:12

The Code of Responsibility for Clerks of the Courts has been amended slightly effective January 1, 2013.
In Canon 1,  "Judicial Case Manager or Assistant Judicial Case Manager" has been added to the definition of "Clerk Magistrate," and in Canon 2, the following sentence was added: "A Clerk Magistrate shall also comply with the lawful directives of the Court Administrator."

EVERY DOG HAS ITS DAY....BUT IN THE UNITED STATES SUPREME COURT?

On October 31^st the U.S. Supreme Court heard oral arguments in two cases that involved the use of drug detection dogs and fourth amendment rights (Florida v. Jardines, Docket No. 11-564, and, Florida v. Harris, Docket No. 11-817). Transcripts and audios are available from the United States Supreme Court website  http://www.supremecourt.gov/opinions

Information concerning these cases and an informative discussion of the issues can be found on the SCOTUSblog at http://www.scotusblog.com/case-files/cases/florida-v-harris/

This was not the first time the court has been asked for guidance on this issue, and courts in many jurisdictions and at all levels have dealt with similar cases. In fact, there exists a great body of case law, annotations, and journal articles on the subject. An early case from the Tenth Circuit , U.S. v. Garcia, 42 F.3d 604 (10^th Cir. 1994), was reported in ALR Federal along with the following annotation: Brian L. Porto, J.D., "Use of Trained Dog to Detect Narcotics or Drugs as Unreasonable Search in Violation of Fourth Amendment, 158 ALR Federal 399 (1998).

The reliability of the dog is sometimes a question in such cases. For a great discussion of this issue see: Monica Fazekas, Comment, Pawing Their Way to the Supreme Court: The Evidence Required to Prove a Narcotic Detection Dog’s Reliability, 32 N. ILL. L. Rev 473 (2012). A recent Massachusetts Superior Court ruling on a motion to suppress evidence in the matter of Commonwealth v. Edgar Santiago, 30 Mass L. Reprt. 81 (2012) provides a close examination of the issue and cites cases and journal articles in its discussion.

More information on the topic is available at our Law About Drug Detection Dogs.

New Requirements for Indictment of Juvenile for Murder

In Comm. v. Walczak, decided December 12, the SJC held that "In future cases, where the Commonwealth seeks to indict a juvenile for murder and where there is substantial evidence of mitigating circumstances or defenses (other than lack of criminal responsibility) presented to the grand jury, the prosecutor shall instruct the grand jury on the elements of murder and on the significance of the mitigating circumstances and defenses. The instructions are to be transcribed as part of the transcription of the grand jury proceedings." While a majority of the court agreed on the result, their reasoning varied. The decision includes two concurring opinions and one concurring in part and dissenting in part.

Child Support Enforcement's website redesigned

The Child Support Enforcement (CSE) unit of the Dept. of Revenue has redesigned its website with a description of the changes. There are 4 languages represented on the website (Spanish, Portuguese, Vietnamese and Cape Verdean).

Put it in writing!

Effective 1/1/2013, most representation and fee agreements must be in writing according to amended Mass. R. Prof. C. 1.5(b). New comment 2 to the rule explains that “a simple memorandum or copy of the lawyer’s customary fee schedule is sufficient if the scope of the representation and the basis or rate of the fee is set forth.” Exceptions to Rule 1.5 include a single-session legal consultation in which the client is charged less than $500 or when the attorney is appointed by the court to represent an indigent party. Also exempted are Limited Assistance Representation attorneys as defined in Rule 6.5.

Premarital agreement law in Massachusetts

A forthcoming research paper entitled Drafting Prenuptial Agreements will contain a chapter on premarital agreement law in Massachusetts  authored by Suffolk University School of Law Professor Charles Kindregan.  The chapter reviews court decisions regarding the unconscionability standard,  two peeks policy and enforceability, and waivers.

Virtual schools expand in 2013

According to Boston.com this past week, the Massachusetts Senate gave a second chance to digital learning in Massachusetts, passing a bill that expands the presence of virtual schools statewide, so that by 2020 the Board of Education could license up to 10 such schools.
The bill, which originated in and was passed by the House as H4274, gives emphasis and preference to those schools that will serve students with distinct medical issues, that have dropped out, travel for the arts or sports, fear bullying, and are high-performing students.
Visit the Commonwealth of Massachusetts Department of Education for more information including Innovation School Regulations.

Lawrence Law Library Open House

Please come to our holiday celebration on Dec. 20th starting at 9am. Refreshments will be served.

New law replaces CHINS statute

Effective November 5, 2012, a newly enacted Massachusetts law, Chapter 240 of the Acts of 2012, entitled, "An Act Regarding Families and Children Engaged in Services "(FACES), replaced the prior "Children in Need of Services" (CHINS) statute. The new law may also be referred to as, "Child Requiring Assistance" (CRA).

The new law will be phased in over a four year period with the first year seeing the implementation of a database that will list resources available for children and families in their own communities. The law changes the former practice of bringing a child in shackles to appear before a court. Now, whenever a child is brought to court or appears in court in response to a notice or summons, the child may not be confined in shackles or similar restraints or court lock-up.

Announcements and information concerning CRA are available from a number of sources. The Governor’s Office recently issued a press release outlining changes that will be implemented under the new law. The Children’s Law Center of Massachusetts has announced the new law on its website and plans to supplement the announcement by adding materials to its website over time. The Massachusetts Bar Association Juvenile and Child Welfare Section has sponsored a free on-line "legal Chat" presentation concerning the law. The hour-long session is free for MBA and non-MBA members, although registration is required. Information is available on the MBA website.

In addition to the above, the Massachusetts Trial Court Juvenile Court Administrative Office has made available a "Handbook for Parents, Legal Guardians, and Custodians in Child Requiring Assistance Cases".

New Corporate Entity: Benefit Corporations

Rob ThomasCourtest Rob Thomas

Massachusetts companies now have a new way to demonstrate their commitment to social responsibility.
As reported by masslive.com  a law signed by Democratic Massachusetts Gov. Deval Patrick in August allows for the creation of a new type of corporate entity:  a benefit corporation. Corporations voluntarily apply for the designation and are then required to consider the public good – factors such as environmental sustainability and community benefit – in their corporate decisions.

 MGL c.156E (as added by St.2012, c.238, s.52) went into effect Dec. 1, and by Monday afternoon seven corporations had already registered, according to the Secretary of State’s office. At least three more companies have said they expect to register in the coming months.  Massachusetts was the 11th state to allow benefit corporations. 

For more information, see our Mass. Law About Corporations: Benefit Corporations.

National Archives ordered to release Watergate break-in case records

On November 2, 2012 the District Court for the District of Columbia directed the National Archives to release records sealed in the United States v. Liddy case within 30 days.  The sealed documents are approximately 950 pages and include evidentiary discussions held outside the jury's hearing, pretrial discussions between the defendants' attorneys and the Court, and post-trial sentencing information. 

Law enforcement seeks greater access to text messages

 FOX 25 News reports that law enforcement is looking to expand access to text messages in criminal investigations.
Organizations representing both police and prosecutors across the United States are lobbying Congress to change current federal privacy laws. 
At present, law enforcement officials do not need a warrant to access cell phone records and the law permits voluntary disclosure of customer communication records.  The number of days providers currently keep text messages varies, with some carriers keeping them as long as 12 days. 
This week the SJC gave the police unfettered access to cell phone call lists. Looking at text messages and emails was not addressed in Com. v. Berry and Com v. Phifer. Read more on this topic at our web page Massachusetts Law About Internet and Online Privacy.

Hon. Michael S. Dukakis featured speaker Dec. 11th

The Third Annual Honorable Daniel F. Toomey Memorial Lecture Series presents the Hon. Michael S. Dukakis, former Governor of Massachusetts on Tuesday, December 11, 2012. The lecture will be held at the Worcester Trial Court Complex Jury Room, Third Floor from 4:00 to 5:30. This event is free and open to the public. No registration is necessary. Refreshments will be served following the Lecture.

Maine Gay marriage law takes effect Dec. 29, 2012

According to WMTW News 8  Maine's new same-sex marriage law is going into effect on Dec. 29.  Governor Paul LePage signed off on the certified election results on Nov. 29 and it goes into effect 30 days from that date.  Many cities and towns are considering special hours because the date falls on a Saturday and the following Monday will be a holiday.  Related information can be found at Massachusetts Law About Same Sex Marriage along with material for residents of other states.

Changing How the State Fills an Empty Senate Seat

Wicked Local reports that two prominent Democrats, Gov. Deval Patrick and Phil Johnston, former chairman of the Massachusetts Democratic Party, both said they are in favor of changing, for the third time in just nine years, the current law that dictates the procedure for filling the U.S. Senate seat of Sen. John Kerry should he become the next Secretary of State or Defense.
Visit our page on Massachusetts Law About Elections for more about the Governor's authority to appoint an interim Senator.

Norfolk County towns struggle with pot law.

 Medicinal marijuana, supported by nearly two-thirds of Massachusetts voters on Nov. 6, is getting a much cooler reception from the Norfolk County officials who will have to administer the new law.

Despite the fact that Norwood residents voted in favor of the law 7,766 to 6,144, according to Wicked Local, Norwood Police Chief William Brooks said he did not believe marijuana had medical properties or that legalizing it for medical use would benefit Massachusetts.

For more information about medical marijuana visit our webpage:
Massachusetts Law About Prescription Medication.

First animal in the state to win 209a protection

According to the Patriot Ledger, Panzer, a six year old labrador mix is the first animal in the state to win protection from a new state law that allows pets in danger to be included in domestic violence restraining orders. For more information about 209A restraining orders see our page on Domestic Violence.