Rule 1:28 Opinions Now Available Online

The Massachusetts Appeals Court announced yesterday that all unpublished decisions issued pursuant to Rule 1:28 since February 25, 2008 are now available under Unpublished Decisions at MassReports.com. They are "searchable by docket number, release date, party name, and word or phrase."

The structure of the site means you'll have to search them separately from any other cases. Right now, the site has three main sections:

• Slip Opinions, for opinions from the last two weeks,
• Opinion Archive, for opinions from the last 6-7 years, not including the current slip opinions, and
• Unpublished Decisions, for Rule 1:28 decisions.

The content does not overlap, so a thorough search would require searching all three.
Also, remember that cases from 1939-date (and thousands of older cases too!) as well as cases from v.1-v.238 Mass. Reports are also available online at no charge. All of these are linked from Mass. Court Cases.

Oceans Act of 2008

It was announced today that the Governor signed into law the Oceans Act of 2008. According to the Governor's office the legislation "will require Massachusetts to develop a first-in-the-nation comprehensive plan to manage development in its state waters, balancing natural resource preservation with traditional and new uses, including renewable energy." The law was prompted in part, by a report by the Pew Commission on Oceans in 2003 entitled "America's Living Oceans."

Middlesex Law Library Closed for Move

Effective Tuesday, May 27, 2008, the Middlesex Law Library in Cambridge will be closed as staff prepares for the move to our new location at 200 Trade Center, 3rd floor in Woburn. Please check back at this site for our official opening date in Woburn.

Lead Jewelry Regs May Be Delayed

Amendments to 105 CMR 650 regulating the sale of toy jewelry were to become effective June 13, 2008, but there has been some concern over the ability of companies to comply with the requirement of two different types of lead testing. According to today's Boston Globe, implementation may be delayed three months to provide additional time for the new testing, believed to be the "strictest in the nation." More information on this issue is available at Mass. Law About Lead Poisoning and Control.

Stay current on US Code

The Legal Information Institute as Cornell has launched RSS feeds for each title of the US Code. Do you practice Bankruptcy law? Get a feed to title 11. Tax law? Stay current with a feed on title 26. Immigration law? Get the updates to title 8.
Each of the 50 titles to the US Code has a link for updates. Very nice.

Law About Bullying

We've added a new page, Mass. Law About Bullying and Cyberbullying to bring together available resources on the topic.

New Independent Contractor Advisory

Massachusetts Attorney General Martha Coakley has issued a new Advisory on the Massachusetts Independent Contractor/Misclassification Law. This new advisory, which supersedes all previous advisories on the topic, covers the history of the law, the three-prong test for determining status, actions constituting violation of the law, and enforcement guidelines. More information on the classification of employees is available at Mass. Law About Independent Contractors.

Help for Homeowners Facing Foreclosure

Beginning May 1, 2008, homeowners facing foreclosure have 90 days to cure a default, under M.G.L. c. 244, s.35A, passed last November. According to a press release from Attorney General Martha Coakley and Governor Deval Patrick, "starting tomorrow, a foreclosing lender must provide a notice of delinquency to the borrower and then provide 90 days to cure the delinquency. Previously, homeowners were only entitled to 30 days notice, and the lender did not have to give the homeowner an opportunity to pay the arrearage, cure the default, and avoid foreclosure."

One key provision of the new law is that "a mortgagor shall not be required to pay any charge, fee, or penalty attributable to the exercise of the right to cure a default," including "attorneys' fees relating to the mortgagor's default that are incurred by the mortgagee." Keep in mind, though, that late fees and per-diem interest payments may still be required.

More information and other resources are available at Mass. Law About Foreclosure.

Voter ID Requirement OK

Yesterday, in Crawford v. Marion County Election Board, 553 US __ (2008), the US Supreme Court upheld an Indiana requirement that voters show government-issued identification at the polls. In a 6-3 split, the justices issues four separate opinions. The main opinion was written by Justice Stevens, joined by Chief Justice Roberts and Justice Kennedy, holding "we cannot conclude that the statute imposes "excessively burdensome requirements" on any class of voters." In a concurring opinion, Justice Scalia, joined by Justices Thomas and Alito, believed that the burden of requiring identification was minor, and the court need not consider "individual impacts" of a "general burden."

Justice Souter, joined by Justice Ginsburg, dissented, stating that some voters would certainly be disenfranchised. "A State may not burden the right to vote merely by invoking abstract interests, be they legitimate, or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed." In a separate dissent, Justice Breyer wrote, "I believe the statute is unconstitutional because it imposes a disproportionate burden upon those eligible voters who lack a driver’s license or other statutorily valid form of photo ID."

The decision does not compel all states to require identification; it merely permits states to do so. According to the Boston Globe, "in Massachusetts, the ruling is expected to do little in reversing long-held beliefs among many Democratic leaders that mandating voters to show IDs at the polls will disenfranchise many, particularly the elderly and the disabled."

More information on voting issues is available at Mass. Law About Elections and Voting.

SJC Clarifies Child Enticement Law

In two decisions released today, Comm. v. Disler and Comm. v. Filopoulos, the Supreme Judicial Court has interpreted the Child Enticement Law, MGL c.265, § 26C to require the Commonwealth to affirmatively prove intent to lure an underage individual. The decisions hold, in part:

1. "The statute surely does not prohibit specific words. It also does not ban anyone from communicating with adults or minors about sexual topics, even through indecent language." "What the statute does require in addition to enticing words or gestures..., is that the person who entices does so with the intent to violate one or more of the enumerated criminal statutes."
2. It is "of no consequence that [the "child" with whom the defendant was communicating] was not a real person, because 'factual impossibility is not a defense to a crime.'"
3. "The Commonwealth is required to prove beyond a reasonable doubt, as an element of the crime of child enticement, that the defendant intended that his advances be directed to an underage person. " "This approach would not require that the Commonwealth prove that the defendant knew the exact age of the child. However, the defendant could not be found guilty unless the Commonwealth proves that his intention was to direct his sexual advances to an underage individual, i.e., an intent to do a criminal act. Intending to have consensual sexual relations with another adult would not provide the requisite criminal intent, even if it turns out that the object of the defendant's advances was in fact a child."

Earliest Mass. Reports Now Online

Volumes 1-238 of Mass. Reports are now available full-text on the web, thanks to the scanning efforts of the Google Books Project. Unfortunately, the search interface is a challenge, so to make them easier to find, we've created a page of Early Mass. Reports which links to all the volumes we have been able to find. Volumes are in PDF format and can be dowloaded or searched. You can also choose to view (but not dowload) a text version.

We could not find them all, so if you are able to locate any of the volumes we haven't linked, please let us know.

Triple Damages for Unpaid Wages

Yesterday, a new law (St.2008, c.80) mandating triple damages for violation of the weekly wage law was enacted after Gov. Patrick failed to sign or veto it. The governor had sent a letter to the Senate asking that the bill be amended to allow some judicial discretion in these cases, but the Senate declined to include the amendments.

Many believed that MGL c.149, s.150 already required triple damages in cases of failure to pay wages or overtime, but in the 2005 case, Wiedmann v. The Bradford Group, 444 Mass. 698, the Supreme Judicial Court held that a judge's award of triple damages under chapter 149 section 150 for a violation of the weekly wage law, was discretionary, not mandatory. In response, the legislature passed this law, including a section which states "This act is intended to clarify the existing law and to reiterate the original intention of the general court that triple damages are mandatory."

For reaction from labor and business, see articles in the Boston Herald and Boston Globe. More information on payment of wages and wage violation complaints is available at Mass. Law About Wages.

New Booster Seat Law

On Friday, Governor Patrick signed St.2008, c.79, An Act Relative to Child Passenger Safety. Under the new law, effective May 1, 2008, "No child under the age of eight and measuring less than fifty-seven inches in height shall ride as a passenger in a motor vehicle on any way unless such child is properly fastened and secured, according to the manufacturer’s instructions, by a child passenger restraint." The standards for child safety seats are set out in 49 CFR 571.213.

We've had questions about whether the law applies to children over eight years old but less than 4' 9". You can see from the excerpt above that the requirement is for children who are both under eight AND less than 4'9".

You can find more information on issues related to driving at Mass. Law About Traffic Violations.

AG Unhappy with Auto Insurance Info.

Attorney General Martha Coakley has called the Division of Insurance's website on auto insurance rates "misleading" in a press release issued this week. She encourages residents to visit her site instead. The Attorney General's site includes a "Consumer Warning" about the InsureMass site. It says, in part, "Please be aware that this site does not allow for accurate price comparisons for the majority of consumers. The prices you will be offered by insurers will most likely be significantly different than the prices you see on this website. "

Consumers should be able to rely on information from official state sources, and when two are in direct conflict, it makes the job of making an informed decision that much more difficult. Hopefully the two agencies can cooperate and put together a source of information that is helpful and reliable. In the meantime, we'll link to both from Law About Auto Insurance.

Probate Court Forms

The Probate Court has amended its Uniform Practice XXXIII to again require Financial Statements and Child Support Guidelines Worksheets be printed on colored paper. Both short and long Financial Statements should be printed on pink paper. The Child Support Guidelines Worksheets should be printed on yellow. According to their press release, "requiring that the forms be printed on colored paper will assist our staff and judges in identifying the forms in the case folder and that they remain unavailable for public inspection." The change is effective April 7, 2008.

This and other Mass. court rules can be found at Mass. Rules of Court, and the forms at Mass. Legal Forms.

Parent Education Program Changes

Earlier this week, the Mass. Probate and Family Court issued Standing Order 4-08, which replaces Standing Order 1-03, Parent Education Program Attendance. According to the press release, "The change to the Standing Order requires that the parties pay $80.00 to the provider in advance of the class to offset the cost of materials and facilitators. This fee may be reduced to $5.00 upon a party submitting a copy of his or her allowed Affidavit of Indigency and Request for Waiver, Substitution or State Payment of Fees and Costs. Parties have paid $65.00 to the providers since 2003." The new order is effective April 7, 2008.

This and other Probate Court Standing Orders are available at Mass. Court Rules.

New Medical Certificate in Guardianship

The Mass. Probate and Family Court announced today a new form for medical certificate in guardianship cases which must be used beginning April 15, 2008. "While the form is long, it will provide judges with the information they need in making the important decision of whether to interfere with the fundamental liberty interest of an individual to make decisions for themselves, in whole or in part, by entering a guardianship decree."

Thanks to Leanna Hamill's Massachusetts Estate Planning and Elder Law blog for bringing the new form to our attention last week. She writes, "The old form was 2 pages, and consisted mostly of blank lines, which left it up to the doctor filling the form to come with what information he or she thought was needed. The new form is 8 pages, and requires much more detailed information from the doctor. It also requires the doctor to specify whether a limited guardianship or a full guardianship is needed. "

Regulating Smoking at Home

Last week, Boston Globe Magazine took on the issue of regulating smoking in multi-unit housing in Snuffing Out Puffing Neighbors. The article explores the move toward restricting smoking further in Massachusetts, and suggests that landlords already have options. “Many landlords are under the impression that it is illegal to ban smoking in apartments. Not so, says Eileen Sullivan, director of policy and planning for the state's Tobacco Control Program: ’We see it as similar to the issue of whether to allow pets.’” More on all aspects of smoking regulation is available at Mass. Law About Smoking.

Boston Limits Student Roommates

On Wednesday, the Boston Zoning Board unanimously approved a measure that limits undergraduate students in the city to no more than four roommates per apartment. The new limits, effective March 13, 2008, apply only to "full-time undergraduate students at a post-secondary educational institution" and do not apply to graduate students or to other unrelated groups of people.

• Text of amendments
• Boston Zoning Code (does not include amendments)

According to the Boston Globe, "opponents, many of them property owners and college students, said the occupancy limit violated their property rights and unfairly singled out a specific group of people. " Supporters, on the other hand, "said it would help prevent landlords from turning single- and two-family homes into high-rent, multibedroom apartments for large numbers of students. "

More information on landlord-tenant issues is available at Mass. Law About Landlord and Tenant.

Heat Shutoff Protection Extended to May 1

Under 220 CMR 25, utilities cannot shut off heat to certain qualified households between November 15 and March 15. This year, according to their press release, "the Massachusetts Department of Public Utilities (DPU) has asked each of the state’s electric and natural gas companies to extend until May 1 the current moratorium on winter utility shut-offs."

This extension is voluntary, however, and while in previous years all utilities have complied with the request, they are under no obligation to do so. You should check with your utility or the DPU to determine whether your utility has agreed to the deadline extension. According to the DPU Legal Division, "so far, two major companies, KeySpan (including National Grid) and NSTAR have agreed to extend the moratorium."

More information on winter heating help and other heating requirements is available at Mass. Law About Winter Heating.