Electronic Discovery

We've added a new page, Law About Electronic Discovery, to provide easy access to the many resources that are now available both online and in print on this topic. Two particularly helpful sites are EDD-ucating Yourself about Electronic Discovery, which includes links to many other web resources including web portals, blogs, cases, articles, and podcasts, and Materials on Electronic Discovery: Civil Litigation, from the Federal Judicial Center. This site includes Managing Discovery of Electronic Information: A Pocket Guide for Judges, 2007, as well as links to articles, state and local rules and forms.

Announcing Full Text Self-Help Books Online

Yet another reason to stop by your law library to get a library card! We are now offering access from your home or office to full-text books from Nolo online. Over 100 titles are available via E-Books Library. Titles include legal forms, help with legal issues such as bankruptcy, estate planning, small business planning and management, as well as day-to-day life concerns, like dog law, neighbor law, parenting agreements, small claims court and much more. Nolo books are known for their clarity of presentation, forms and timely coverage of the law.

Superior Court Rules

Massachusetts Superior Court Rules are now available on our website, along with many other state and federal rules. We are working toward the goal of providing comprehensive access to Massachusetts rules. In the meantime, if a rule is not available online, remember that our Document Delivery service is always happy to help.

Jury Duty Scam

According to a press release from the Office of the Jury Commissioner, "Citizens from around the state have received calls from people claiming to be court officials chasing scofflaws who have missed jury duty. When the target protests that they knew nothing of the supposedly missed jury duty, the caller demands personal identifying information (such as Social Security numbers and dates of birth) to confirm that the target is not at risk of fine or arrest." The office never phones individuals, and all legitimate communication from them is done by mail or email. They urge, "If you receive a telephone call claiming that you or someone you know has missed jury duty, under no circumstances should you give the caller any personal information about yourself or anyone else."

Drunk Driving Procedures Challenged

Since the state passed the "per se" blood alcohol law in 2003, defining blood alcohol of .08 or higher as a crime, rather than as only a presumption of intoxication, defense attorneys have had great success challenging blood alcohol tests in court, according to a January 22 article in Mass. Lawyers Weekly. Defense lawyers are demanding expert testimony on both the validity of the tests and the maintenance of the machines, and when it is lacking, judges are often excluding the breath test evidence.

Prosecutors believe that expert testimony should not be routinely required and have appealed the exclusion of blood alcohol test results in two cases still pending in lower courts. Yesterday, the Supreme Judicial Court held oral arguments in the cases, Comm. v. Thomas and Comm. v. Colturi. According to the February 8 Boston Globe, a key issue is how to extrapolate from the blood alcohol at the time of the test to the blood alcohol at the time of the stop, which may have been one hour or more earlier.

More information on drunk driving laws in Massachusetts is available at Mass. Law About Drunk Driving.

Older Acts and Resolves Now Available

To our great delight, the State Library of Massachusetts has digitized Acts and Resolves from 1692 to 1996 and made them available for searching and viewing on their site. Coupled with acts from 1997 to date from the State Legislature, this gives us complete coverage of acts available in digital form for no charge. Many thanks to the great people at the State Library!

Use of GPS in Domestic Violence

Domestic violence defendants previously in violation of a restraining order may be required to wear a GPS device, under a law passed earlier this month. Chapter 418 of 2006 allows the court to define certain geographic exclusion zones, such as the victim’s workplace or school, and use GPS technology to track the defendant. Then, “ if a court finds that the defendant has entered a geographic exclusion zone, it shall revoke his probation and the defendant shall be fined, imprisoned or both as provided in this section.” More on domestic violence is available at Mass. Law About Domestic Violence.

Police Vehicles and the Law

Peter DeMarco had a great column in the Boston Globe recently on the laws affecting the operation of police vehicles.

Here are a few quotes about what police officers can't do. From Quincy Police Captain John Dougan, "We don't have the right of way all the time. Only when we're on a call. The rest of the time we're like regular citizens. We have to follow the rules of the road like everyone else." From Jack Collins, of the Massachusetts Chiefs of Police Association. "Can an officer park in a handicapped space? Of course not."

The article goes on to highlight a few laws affecting emergency vehicles and our response to them:

1. "By law, police must still come to a complete stop before driving through a stop sign or red light." (Chapter 89, section 7B)

2. "Police vehicles must also stop for school buses loading or unloading children, unless otherwise directed by a traffic cop." (Chapter 90, section 14)

3. "If you intentionally get in an emergency vehicle's way you can be fined $50 or jailed for three months." (Chapter 89, section 7 and 7A)

More information on traffic laws is available at Mass. Law About Traffic Violations.

Child Brides

In Massachusetts, under MGL c.207, s. 25, a person under eighteen cannot marry without parental consent . Massachusetts does not have a law specifying the minimum age at which a person can marry with a parent’s consent. The process requires court approval, so whether or not to authorize the marriage of a particular minor is within a judge’s discretion.

Yet if you search the web, several sites suggest either that the minimum age to marry here with parental consent is 14 for boys and 12 for girls, or that it is 16 for both. Where do these ages come from?

The notion of a minimum age of 14 for boys and 12 for girls comes from an 1854 case, Parton v. Hervey, 67 Mass. 119. In this case, a 13-year-old girl got married without her mother’s consent, and her mother was forbidding her from going to live with her new husband. The court ruled that while it is illegal for someone to perform a marriage of a minor, the marriage itself is only voidable, not void. So the minor could get out of the marriage if she wanted to, but that the marriage was not void as a matter of law, as long as the minor was above the “age of consent.” The case then went on to say that the age of consent in Massachusetts (in 1854) was fourteen for males and twelve for females, and thus the girl was still married and her mother couldn’t keep her from her beloved husband. This case was most recently cited in 1977 in Baird v. Attorney Gen., 371 Mass. 741 , for its basic premise “A marriage ceremony involving a freely assenting minor, acting without parental consent, has been held valid, although, because of the minor's age, the ceremony was performed in violation of law.” This case did not reiterate the ages of 12 and 14.

Presumably, the concept that the minimum age is sixteen for both males and females comes from that same notion, that a minor above the age of consent may have a valid marriage. Massachusetts does not have a general age of consent for all things (for example, consent to medical treatment or kidnapping are different). For sexual matters, though, sixteen is generally called the “age of consent,” because sex with a person under sixteen is prohibited by MGL c.265 s.23. And so some websites state that you can marry here with parental consent at sixteen, and without it at eighteen. But just the law does not list a minimum age of twelve, it doesn't give a minimum age of sixteen either.

The truth is both simpler and more murky. In Massachusetts, if a parent consents to a minor child’s marriage, authorization must still be obtained from the Probate or District Court. The judge will use his or her discretion to determine if the marriage is in the child’s best interest. As far as we can determine, there is no minimum age; there also is no requirement that the judge approve any request. Each case is simply decided on its own merits.

Teen Driving Law Signed

In his last hours as governor this week, Mitt Romney signed a new law requiring more training before getting a license and providing stricter penalties for teen drivers who commit traffic violations. The new new penalties are effective on March 1, 2007 and the training requirements on September 1, 2007.

Same-Sex Marriage Amendment Advances

This week, the Massachusetts legislature voted 62-134 to put the proposed constitutional amendment to limit marriage on the November 2008 ballot. The measure needed only 50 votes to pass. It will need to pass again in next year’s legislative session to be placed on the ballot. For much more on the issue, see Mass. Law About Same-Sex Marriage.

SJC Same-Sex Marriage Decision: Cannot Compel Legislature to Vote

Earlier today, in the case of Doyle v. Secretary of the Commonwealth, the SJC determined that while the legislature had a duty to vote on a proposed constitutional amendment, the court lacked the authority to compel them to do so. The opinion said, in part:

"We conclude that, while the plaintiffs cannot obtain declaratory judgment or mandamus against the Legislature, and, therefore, the complaint must be dismissed, it is our obligation, in these circumstances, to restate what art. 48 requires."

"Beyond resorting to aspirational language that relies on the presumptive good faith of elected representatives, there is no presently articulated judicial remedy for the Legislature's indifference to, or defiance of, its constitutional duties. We have no statutory authority to issue a declaratory judgment concerning the constitutionality of legislative action, or inaction, in this matter."

"The members of the General Court are the people's elected representatives, and each one of them has taken an oath to uphold the Constitution of the Commonwealth. Those members who now seek to avoid their lawful obligations, by a vote to recess without a roll call vote by yeas and nays on the merits of the initiative amendment (or by other procedural vote of similar consequence), ultimately will have to answer to the people who elected them."

New Teen Driving Rules

The Massachusetts Legislature is set to pass a bill today increasing the drivers ed requirements before a teen can get a license and increasing penalties for offenses committed by young drivers. Here are some highlights:

Effective March 31, 2007, new penalties:

Driving with other passengers in first six months:

• 1st offense: 60 day license suspension
• 2nd offense: 180 day suspension
• 3rd offense: 1 year suspension

Junior Operator Driving between midnight and 5 am:

• 1st offense: 60 day license suspension
• 2nd offense: 180 day suspension
• 3rd offense: 1 year suspension

Permit Holder driving without an adult or between midnight and 5 am:

• 1st offense: 60 day license suspension
• 2nd offense: 180 day suspension
• 3rd offense: 1 year suspension

Junior Operator drag racing:

• 1st offense: $250 plus 1 year license suspension plus $500 to reinstate license
• 2nd offense: $500 plus 3 years license suspension plus $1000 to reinstate

Junior Operator speeding (in addition to fines):

• 1st offense: 90 day license suspension plus $500 to reinstate license
• 2nd offense: 1 year suspension plus $500 to reinstate

Effective September 1, 2007: New requirements to get a license:

• 40 hours driving with parent or guardian (or 30 if you take an advances drivers ed class)
• Parent or guardian must participate in 2 hours of drivers ed
• Drivers ed: 6 hours observing and 12 hours behind the wheel

Haverhill Adopts Smart Growth Zoning

According to the Boston Business Journal, Haverhill has become the first city in the state to use the smart growth zoning alternative provided in MGL Chapter 40R to rezone a large section of its downtown. “The program makes it easier for developers to obtain permits to convert old buildings into housing and new businesses… Projects slated for the area include plans for more than 300 condos or apartments. Up to 20 percent of all housing must be sold at an affordable rate, or 80 percent of the market value, under the state's 40R rules.” Smart Growth regulations are found at 760 CMR 59. More information on smart growth is available from the Citizens’ Housing and Planning Association.

Same-Sex Partner Denied De Facto Parent Status

The Supreme Judicial Court ruled earlier this month in A.H. v. M.P. that a woman who never adopted the child of her same-sex partner, “although she was well aware of the importance of doing so,” and was not the primary caretaker for the child, did not have a legal right to visitation or a support agreement as a “de facto parent.” Further, the court declined to adopt a “parent by estoppel,” theory as defined in the ALI Principles of the Law of Family Dissolution § 2.03 (2002). saying, in part, “the parent by estoppel principle is a most dramatic intrusion into the rights of fit parents to care for their child as they see fit” and “parent by estoppel status is most appropriate where "adoption is not legally available or possible.""

Web Ads Alone Don't Confer Jurisdiction

In Roberts v. Legendary Marine Sales, the SJC ruled earlier this month that general advertising on the web, not aimed specifically at Massachusetts residents, does not, by itself, confer personal jurisdiction over the advertiser. The court ruled that a Florida boat dealer who advertised a boat on the web could not be sued in Massachusetts, by Massachusetts residents who purchased a boat through the ad, due to lack of personal jurisdiction.

Cambridge Courthouse Suit May Go Forward

Last week, in the case of Sullivan v. Chief Justice for Administration and Management of the Trial Court, the Supreme Judicial Court ruled employees in the courthouse may sue the Chief Justice for Administration and Management over appropriate remediation of environmental concerns within the building. The SJC determined that plaintiffs had standing and that the claims were not barred by sovereign immunity. However, the court denied claims based on environmental law violations, and declined to exercise its powers of general superintendence over the court at this time. A few highlights:

1. Standing. “The plaintiffs have alleged sufficient facts to show that they are in danger of suffering serious harm as a direct result of the CJAM's purported breach of his statutory and common-law obligations. Moreover, although the plaintiffs do not allege that they have suffered actual harm, they are "not required to wait until [they are] injured before [they] can apply to a court of equity for relief," so long as the danger is reasonably imminent.”

2. Sovereign Immunity. “claims based on negligent maintenance of public property, including those against the CJAM, are not barred by sovereign immunity pursuant to G. L. c. 258, § 10 (j) (3).”

3. Public nuisance. “Because the plaintiffs have not alleged a special injury of a direct and substantial character other than that which the general public shares, a public nuisance action can only be brought by the Attorney General. Accordingly, count 3 of the plaintiffs' complaint fails to state a claim on which relief can be granted.”

4. Environmental law violations. “In the absence of any legal authority pursuant to which the plaintiffs can bring an action to enforce the environmental laws on which they rely, we conclude that count 5 of the plaintiffs' complaint fails to state a claim on which relief can be granted.”

5. Exercise of general superintendence. “The exercise of this court's general superintendence under G. L. c. 211, § 3, is not appropriate at this juncture. Accordingly, count 6 of the plaintiffs' complaint fails to state a claim on which relief can be granted.”

Prejudgment Attachment Survives Homestead

In Walsh v. Yarossi, the Land Court decided earlier this month that an attachment obtained before a homestead declaration was filed negates the homestead protection, even when the judgment was not obtained until years after the homestead. Although the defendants argued that a prejudgment attachment was not a debt, but "only a claim for such debt," the court held that "G.L. c. 223 makes the status of the Attachment as a lien clear, as well as the fact that a judgment relates back to the date of the Attachment. " For more about homestead protection, see Mass. Law About Homestead.

Felonies limited for deportation

The Supreme Court ruled last week that legal residents can only be deported under the Immigration and Nationality Act for acts that are felonies under the Controlled Substance Act, and not merely felonies under state law. In Lopez v. Gonzales the court ruled "Conduct made a felony under state law but a misdemeanor under the CSA is not a "felony punishable under the Controlled Substances Act" for INA purposes."
For more information about the underlying case see the Cornell preview. In this case, the government still has the discretion to initiate removal proceedings, but Lopez' prior conviction cannot be designated as a felony. See also our page on Immigration.

Full Court to Hear Romney's Same-Sex Marriage Case

After hearing a suit filed by Governor Romney and other same-sex marriage opponents earlier today (Doyle et al. v. Galvin et al. (SJ 2006-0486)), SJC Justice Judith Cowin sitting as a single justice has determined that the case should be heard by the full court on December 20,2006. The plaintiffs asked the court to compel the legislature to vote on the proposed constitutional amendment, or, if they fail to do so, compel the Secretary of the Commonwealth to place the measure on the 2008 ballot without it having first been voted on by the legislature.

The defendants argued that the issue has already been addressed by the SJC in the case of LIMITS v. President of the Senate, 414 Mass. 31 (1992). In that case, the court said “The courts should be most hesitant in instructing the General Court when and how to perform its constitutional duties. Mandamus is not available against the Legislature…The reason for this rule rests on separation of powers principles expressed in art. 30 of the Declaration of Rights of the Massachusetts Constitution. Those principles call for the judiciary to refrain from intruding into the power and function of another branch of government, in this case, the joint session of the Legislature held under art. 48.” They went on to hold that Article 48 of the Constitution “gives to the courts no enforcement role. When the purpose of art. 48 has been frustrated, the only remedy may come from the influence of public opinion, expressed ultimately at the ballot box.” According to the Boston Globe, plaintiffs argued that “the 1992 case differs because lawmakers adjourned the session, giving the governor the right to call them back. In the gay marriage case, lawmakers have simply recessed.”

More information on same-sex marriage, including other cases and proceedings, is available at Mass. Law About Same-Sex Marriage.