Spanking and the Law

Much has been written recently about a proposed law which would outlaw spanking in Massachusetts. That got us interested in what the current status of the law was. For an excellent discussion of the legal limits on physical discipline, see Comm. v. Rubeck, 64 Mass. App. Ct. 396 (2005). This case says, in part, "The Legislature has not chosen to recognize or approve a parental right to use force in disciplining a child, and we know of no case in Massachusetts that specifically recognizes such a right, although there are allusions to this parental right in our cases." It continues, "in Commonwealth v. O'Connor, 407 Mass. 663, 667 (1990), the court discussed such a right, noting, however, that, as of that time, "[n]o Massachusetts decision or statute grants parents or others a right to use reasonable force in disciplining a child."

However, it also says, "Instruction 3.15 of the Massachusetts Superior Court Criminal Practice Jury Instructions (1st Supp. 2003) proposes a jury instruction stating that "[a] parent, or one acting in the position of a parent and who has assumed the responsibilities of a parent, may use reasonable force to discipline (his/her) minor child."

Laws and regulations specifically prohibiting corporal punishment in Massachusetts include:

• G. L. c. 71, § 37G: Public Schools
• 606 CMR 7.05 (8) Day Care
• 105 Code Mass. Regs. § 430.191: Recreational Camps

Federal Cases on the Web

A very exciting announcement from Public.Resource.Org and Fastcase, Inc.! In yesterday's press release, they announced that "they will release a large and free archive of federal case law, including all Courts of Appeals decisions from 1950 to the present and all Supreme Court decisions since 1754. The archive will be public domain and usable by anyone for any purpose." Public access to public documents--wow! For everyone who ever wondered exactly what was covered by West's copyright in their reporters, you may be interested in Public Resource's letter to West, and West's reply.

Electrical Code changes

The Board of Fire Prevention Regulations has released the 2008 Massachusetts Electrical Code. The code is actually the 2008 National Electrical Code, modified with certain provisions. These new provisions are found in 527 CMR 12, and are linked from our CMR page.

Abortion Clinic Buffer Zone

Gov. Patrick this week signed SB1353, An Act Relative to Public Safety, which expands the buffer zone around abortion clinics to 35 feet. The new law, which amends MGL c.266, s.120E1/2, says in part, "No person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of thirty-five feet of any portion of an entrance to, exit from, or driveway of a reproductive health care facility, or within the area within a rectangle created by extending the outside boundaries of any entrance to, exit from, or driveway of, a reproductive health care facility in straight lines to the point where such lines intersect the sideline of the street in front of such entrance, exit or driveway."



According to the Boston Globe, Operation Rescue plans to challenge the law, but the Supreme Judicial Court, in response to a question from the Senate in 2000 (Opinion of the Justices to the Senate, 430 Mass. 1205 (2000)), indicated that a proposed 25-foot buffer zone would be constitutional. That opinion stated that floating buffer zones, as Massachusetts law previously provided are "problematic" and make compliance difficult. With a clearly defined boundary, "demonstrators may still engage in all forms of protest as they previously have done, but are simply constrained to do so outside the buffer zone."



More information on abortion in Massachusetts is available at Mass. Law About Abortion.

Child Support After Parent's Death

A recent Boston Globe article, Clash over estate spurs mother's challenge to law, highlights a legal battle in Rhode Island over whether a parent can disinherit minor children when the estate has sufficient funds to provide support for them, ending support, or whether, instead, child support should be treated like an outstanding obligation of the estate like other debts. In Massachusetts, the issue was resolved in L.W.K. v. E.R.C., 432 Mass. 438 (2000). In LWK, the court held that a child support obligation survives death. In part, the majority held:

1. "A legally enforceable obligation to pay child support, like other financial obligations of the testator, takes precedence over testamentary dispositions and must be satisfied prior to any distribution of assets under the will."
2. "A parent charged with an obligation to support his child cannot nullify that legal obligation by disinheriting his child pursuant to G. L. c. 191, Sect. 20. Beyond satisfaction of his support obligation, however, a parent is free to exercise his testamentary discretion with respect to a minor child, as all others, and may disinherit her."
3. "A judge in the Probate and Family Court does not have the authority to enter an order after the death of the obligor to secure postminority educational support for a child who does not presently qualify for such support pursuant to G. L. c. 209C, Sect. 9."

On Shushing

I'd like to think I would never shush someone in a library. The stereotypical image of glasses, a bun, sensible shoes, and an attitude of condescension sends me reeling, and makes me want to crank up the music and order food and drink for everyone. So it is so frustrating to have to do the electronic version of a "shush" here and turn off comments on the blog. We have become so innundated with spam comments that no real comments can be heard, and as a government agency we really can't allow people to scream "cheap Viagra" in person or online, I guess.

A library, real or virtual, should be a place for freedom of expression. We want your input, and we want you to be comfortable, online and in our libraries. The bottom of every page of this site links to our reference librarians as well as to the webperson. So please, keep your comments and concerns coming through email, and my sincerest apologies for cutting off the dialog that comments create.

Sentence Deferred 16 Years Not To Be Resumed

In the case of Commonwealth v. Ly, the Supreme Judicial Court ruled today that a convicted rapist may not be compelled to complete his sentence after a delay of 16 years by the state. Vith Ly was granted a stay of execution pending appeal in 1990. In 1991, one of his convictions was affirmed, but he was never ordered to serve his sentence. The court says "a defendant who unsuccessfully appeals from a criminal conviction bears no burden to come forward voluntarily to be taken into custody and incarcerated." The Commonwealth failed to report to the court "the immediate necessity to revoke the stay of execution of the defendant's sentences, " and failed to notice the error in subsequent years despite the arrests of Ly in 1999 and 2001.

According to the court, "it is a basic principle that a defendant sentenced to incarceration has a due process right to serve the sentence promptly and continuously, rather than 'in installments.'"

"We conclude that execution of the defendant's sentences, after an unexplained delay of sixteen years on the part of the Commonwealth to have the sentences executed, would violate due process and principles of fundamental fairness. "

Physician Apologies

At least three bills currently pending in the Massachusetts legislature would provide legal protection to doctors who apologize for errors. S1284 would set up a pilot program through which the apologies of participating physicians "shall not be subject to subpoena or discovery, or introduced into evidence, in any judicial or administrative proceeding." This bill would require "participating hospitals and physicians [to] promptly acknowledge and apologize for mistakes in patient care and promptly offer fair settlements."

Two other bills, S987 and H1370, apply to all health care providers, and provide that "any and all statements, affirmations, gestures, activities or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of concern which are made by a a health care provider, facility or an employee or agent of a health care provider or facility, to the patient, a relative of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence in any judicial or administrative proceeding and shall not constitute an admission of liability or an admission against interest." These bills do not require the offer of a settlement.

The Mass. Medical Society supports the passage of S987/H1370. According to the Boston Globe, "the state's trial lawyers oppose giving any doctor a special exemption." A study done at Washington University reports that "Patients said they wanted to know if there had been an error, how the error happened, and particularly what the doctor and institution would be doing to prevent the error from happening again. And they would like an apology." It is unclear, though, what patients' views might be of legal protection for that apology.

Do Not Call? Do Not Worry

The FTC had intended for phone numbers listed on the national Do Not Call List to be renewed every five years or dropped from the list. Since the Federal Do Not Call Act, 15 USC 6101 note, was enacted in 2003, this would mean that phone numbers would start falling off the registry next year. Legislators have stepped up to make the registration permanent, though, and the FTC has promised that they will not drop any phone numbers from the Do Not Call Registry while bills are pending to make the registry permanent. Read the full text and check the status of the Senate Bill and House Bill. So no need to renew your registration. If your number is on the list, it will remain there. If not, register at the Do Not Call site.

More information on Do Not Call and other telemarketing issues is available at Mass. Law About Telemarketing.

Employee Rights During Investigation

Today's Boston Globe reports that the prosecution of Blackwater employees for shootings in Iraq might be difficult because the guards received immunity before speaking to State Department employees. Federal law provides key protection for government employees facing an internal investigation.

1. Garrity v. New Jersey, 385 US 493 (1967). Under Garrity, a government employee cannot be faced with the choice between self-incrimination and termination. If the employee is coerced to speak under threat of termination, the statements cannot be used against him in a subsequent prosecution. According to an FCC source, employees faced with an investigation should be given a "Garrity Warning," in which "The individual is apprised of his or her right to remain silent if the answers may tend to incriminate him or her; that anything said may be used against him or her in either a criminal or administrative proceeding; and he or she cannot be disciplined for remaining silent. " So, in a Garrity situation, the employer gives up their right to discipline the employee for their silence, but retains the right to prosecute the employee for anything they might say. Thus, Garrity is said to cover "voluntary statements."

2. Kalkines v. United States, 473 F.2d. 1391 (1973). Under Kalkines, a government employer can be required to answer questions, and subject to discipline by the employer for his responses, if the possibility of prosecution has been removed. Apparently, in the Blackwater case, the contractors were given a promise of immunity from prosecution under Kalkines and so were required to answer questions, but now would face only disciplinary, and not criminal, consequences.

It is unclear from reports whether the fact that the individuals involved in the shootings were not government employees, but were employees of a government contractor, would affect their rights under Garrity and Kalkines.

Information on other employment issues in Massachusetts is available at Mass. Law About Employment Termination.

Expert Witness Jury Instruction

In Commonwealth v. Hinds, issued today, the Supreme Judicial Court reversed the conviction of a man convicted of first degree murder because of a faulty jury instruction on the evaluation of expert testimony. In the opinion, the court goes on to question the instruction previously "cited with approval" in Commonwealth v. Rodriguez, 437 Mass. 554 (2002) from Section 4.7.1. of the Massachusetts Superior Court Criminal Practice Jury Instructions (Mass. Continuing Legal Educ. 1999). The SJC then provides this "better instruction":

"There is one more point about witnesses to address: expert witnesses. This term refers to witnesses who have specialized training or experience in a particular field. Generally, in cases that are tried in our courts, both civil and criminal, witnesses may testify only to facts that are within their own personal knowledge--that is, things that they have personally seen or heard or felt. However, in a variety of cases, issues arise that are beyond the experience of lay persons, and in those types of cases, we allow a person with specialized training or experience, called an expert witness, to testify, and to testify not only to facts, but also to opinions, and the reasons for his or her opinions, on issues that are within the witness's field of expertise and are relevant and material to the case.

"Because a particular witness has specialized training and experience in his or her field does not put that witness on a higher level than any other witness, and you are to treat the so-called expert witness just like you would treat any other witness. In other words, as with any other witness, it is completely up to you to decide whether you accept the testimony of an expert witness, including the opinions that the witness gave. It is also entirely up to you to decide whether you accept the facts relied on by the expert and to decide what conclusions, if any, you draw from the expert's testimony. You are free to reject the testimony and opinion of such a witness, in whole or in part, if you determine that the witness's opinion is not based on sufficient education and experience or that the testimony of the witness was motivated by some bias or interest in the case. You must also, as has been explained, keep firmly in mind that you alone decide what the facts are. If you conclude that an expert's opinion is not based on the facts, as you find those facts to be, then you may reject the testimony and opinion of the expert in whole or in part.

"You must remember that expert witnesses do not decide cases; juries do. In the last analysis, an expert witness is like any other witness, in the sense that you alone make the judgment about how much credibility and weight you give to the expert's testimony, and what conclusions you draw from that testimony."

New Mortgage Broker Regulations

Attorney General Martha Coakley has issued new regulations for mortgage brokers, amending 940 CMR 8. According to her site, the regulations prohibit "certain unfair and deceptive advertising practices used by some mortgage lenders and brokers," and "expand the scope of previous home improvement loan regulations to apply to all mortgage loans and to prohibit a number of practices used in recent years by some lenders and brokers, which have contributed to the current foreclosure crisis." The amendments "shall be effective on November 15, 2007, except that the provisions of Section 8.05 (requiring new disclosure forms) shall be effective on January 2, 2008. " These and all other Massachusetts regulations available on the web are linked from our Code of Mass. Regulations pages.

Pit Bull Won't Justify No-Knock Warrant

In Commonwealth v. Santiago, the Massachusetts Appeals Court ruled yesterday that the mere presence of a pit bull is insufficient to justify a no-knock entry. The court said, in part, "While we agree with the Commonwealth that a pit bull (or a mutt) may, under the appropriate circumstances, pose a serious enough threat to an officer's safety to justify a no-knock warrant, no such circumstances were present here. There was no information in the affidavit that the defendant might actually use the pit bull as a weapon."

Elections tomorrow, 5th US Congressional seat

Tuesday, October 16th is election day for the 5th Congressional seat, formerly held by Marty Meehan. The 5th district is rather large, comprised of 25 cities and towns. There are 5 candidates in this election: Niki Tsongas, Jim Ogonowski, Kurt Hayes, Patrick Murphy and Kevin Thompson. To find where to vote, go to the Elections Division of the Secretary of State : http://www.wheredoivotema.com/bal/myelectioninfo.php.
The Presidential primary will be held on March 4th in Massachusetts. Interested in running? See if you are qualified.
We also have a page on Elections, to help with your legal research.

Grandparent visitation examined

In a new decision from the Appeals Court, a maternal grandmother's petition for visitation rights over the objection of the father, was remanded to Probate and Family court, rejecting a motion to dismiss by the father. The grandmothers pleadings were deemed sufficient to show visitation may be necessary to protect the child from significant harm. The case, Sher v. Desmond, 70 Mass. App. Ct. 270 is unusual in that the grandmother had never had contact with the child. The circumstances of the mother's disappearance, and her likely abuse by the father were deemed sufficient in the pleadings to reject a dismissal. The mother is missing to this day, her case unsolved.
See our page on Grandparents' Visitation, and Domestic Violence.

Privacy in the news today

A quick reading of today's news reveals several stories relating to privacy and/or electronic information. Release of deceased Boston firefighters autopsy results are being contested in court, showing alcohol and cocaine use. (Globe, Herald) A superior court judge ruled that Channel 7 was barred from reporting the findings.
Then we read that private data, including social security numbers, was released for 450,000 licensed professionals by the state licensing board. (Globe)
Visa is concerned that retailers are not meeting data security standards. (Globe)
And finally, the federal Homeland Security Department's email bulletin apparently sent a flood of over 2.2 million unrelated email messages nationwide. (Globe)
We get many questions about privacy, and have created several topical pages to help.
Medical Privacy, Identity Theft, Internet and Online Privacy, and Employee Privacy are pages that might help you make sense of all the issues.

Jury Duty

The SJC yesterday issued an opinion about background checks for jurors. During jury deliberations for a murder trial, the District Attorney ran background checks on the jurors, and discovered that 5 have criminal histories that they did not disclose in the questionnaire. Although at that point, the jury had returned verdicts on some of the charges, they were hung on the rest. The judge declared a mistrial, and in this decision, the SJC upheld the findings and declared that "double jeopardy does not bar retrial." The Boston Globe has more on the story.
The original trial led to a revision of the jury questionnaire.
Jury duty can be difficult, and often inconvenient, but an essential element in our society of laws. The Postal Service recently released a new Jury Duty Stamp. The artist hails from Merrimac, according to the Boston Herald.
Check out the Jury System page, and if called to serve, "serve with pride."

Ticket Scalping Law Violated

Quincy District Court Judge Mark S. Coven ruled Monday that Admit One Ticket Agency (doing business as RedSoxTix.com) violated the state's anti-scalping law by offering an $85 Red Sox ticket for sale for $500. According to the Boston Globe, "Coven ...ruled Admit One violated the "language and legislative intent of the existing law" by recouping the cost of acquiring the tickets it was reselling and by charging customers a membership fee equal to 15 percent of the sale price. The judge said Admit One paid $225 for the $85 Red Sox-Yankees tickets it was selling and illegally tried to recoup that cost in its $500 resale price. Coven said Admit One's 15 percent membership fee was illusory."

This may spur the legislature to action on pending bills that would amend, or even eliminate the state's anti-scalping law. According to TicketNews.com, Massachusetts is one of six states with such laws (the others: Arkansas, Rhode Island, Kentucky, North Carolina and Michigan). More information on ticket scalping is available at Mass. Law About Ticket Scalping.

Mandatory Drivers' Ed for Parents

Beginning September 1, the parent or guardian of a teenager seeking a driver's license now must take a 2-hour drivers' education course along with their teen. According to the Registry of Motor Vehicles, "In their special two-hour course, parents will learn about the junior operator's law and their role in supporting the law, how to teach their child to drive safely, what skills their child needs to master to pass the road test, and how to identify family member driving behaviors which may negatively influence a new driver." This is just one of many changes brought about by last year's changes in the Junior Operator Law, St.2006, c.428. The Registry has a page that helps users locate a driver's education school by town.

SJC Briefs Available Online!

The Supreme Judicial Court has started to add its case briefs to its public docket information beginning with cases scheduled to be argued at the September, 2007 sitting. The briefs will be linked from the docket sheet for each case. We are told they will be archived there and not removed.

To give you an idea of what the briefs links look like, use the search page to do a search for the docket sheet for Commonwealth Electric vs. Leslie H. MacCardell with Docket Number SJC-09851. Docket sheets are searchable by party name, attorney, docket number, lower court and lower court judge. When the docket sheet appears, scroll down to the section titled BRIEFS.

In this case, there are links to the Appellant's Brief, the Appellee's Brief, and an Amicus Brief.

Sadly, the Appeals Court will NOT be adding briefs to their website.