New Massachusetts Court Reform Law

A court reform bill was signed into law by Governor Patrick earlier this month (Chapter 93 of the Acts of 2011). The legislation provides for the hiring of a court administrator to act as the administrative head of the Trial Court. The court administrator will be responsible for court personnel, security and facilities. The position of the Chief Justice for Administration and Management will be renamed Chief Justice of the Trial Court. The Chief Justice will be the policy and judicial head of the Trial Court. Any disputes between the court administrator and the Chief Justice of the Trial Court will be settled by the Chief Justice of the Massachusetts Supreme Judicial Court. The statute also provides for the Probation Department to remain within the judicial branch. Although most of the statutory changes will take effect on July 1, 2012, the legislation allows the court administrator to be hired before this date.

New SJC Rule 4:02(10) effective Thursday

Rule 4:02, Registration of Attorneys, was amended in June to add the following subsection (10):

(10) Residential Addresses Confidential

Residential addresses disclosed on registration statements, except those designated as the registrant's place of business, shall be treated as confidential and shall be used by the Board and by Bar Counsel only for the purpose of communicating with registrants or otherwise in the course of the business of the Board or Bar Counsel. Other than in the course of such business, neither the Board nor Bar Counsel shall disclose any such residential address to any third party unless directed to do so by order of this Court for Suffolk County.

The new subsection is effective September 1, 2011.

Police lose appeal in cell phone video civil case

When Simon Glik videod an arrest on Boston Common, the police arrested him for violating the wiretapping statute, among others. Those charges were later dropped, and deemed baseless.
Glik then filed a civil suit claiming violation of civil rights. The intelocutory appeal by the police was heard in June, and issued on Friday here. In part it reads “We conclude, based on the facts alleged, that Glik was exercising clearly-established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause...” They concluded the video was not secret, and so the police lacked probable cause.

State of Emergency

What does Hurrican Irene mean to you? According to the Executive Office of Public Safety, "[t]here is a misconception that various restrictions or bans automatically are triggered when there is a Gubernatorial State of Emergency in place. This is not so. The declaration of a State of Emergency does not in itself affect the operation of private enterprise. Travel is not automatically banned; businesses are not automatically closed. Many businesses do have contractual agreements with their employees regarding who does/does not have to report to work when a Gubernatorial State of Emergency is issued."

State stops 5 reverse mortgage companies

The Massachusetts Division of Banks has ordered 5 companies to stop offering reverse mortgages to elderly homeowners, stating that they are not licensed in Massachusetts. The Globe reports today that Eldervantage, Lender 411, Senior Reverse Mortgage Online, Reverse Mortgage Helpdesk and Reverse Mortgage Site are not allowed to do business in Massachusetts.
The Division of Banks is currently in the public comment phase of updating and increasing oversite of reverse mortgages. New regulations are under review that will add more consumer protections for reverse mortgages.
For more information, refer to our page on the Law of reverse Mortgages.

Jury Instructions on Responsibility, Mental Illness and Drug or Alcohol Use

Earlier this week, the Supreme Judicial Court, in Comm. v. DiPadova, recommended a revised set of jury instructions in cases where a defendant's legal capacity is at issue because of a combination of mental illness and drug or alcohol use. The summary provided in the opinion provides a clear explanation:

"where a defendant's substance abuse interacts with a mental disease or defect, that defendant is criminally responsible only if two conditions are true: (1) his mental condition alone, prior to the consumption of the drugs, did not render him criminally irresponsible; and (2) he knew or reasonably should have known that this consumption would cause him to lose substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law--that is, would cause him to become criminally irresponsible."

The recommended revision provided in the case appendix is reprinted below:

RECOMMENDED REVISION OF BERRY  INSTRUCTION 

"A defendant's lack of criminal responsibility must be due to a mental disease or defect. Intoxication caused by the voluntary consumption of alcohol or drugs, by itself, is not a mental disease or defect. Where a defendant lacks substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law solely as a result of voluntary intoxication, then he is criminally responsible for his conduct.

"However, the consumption of alcohol or drugs may trigger or intensify (make worse) a defendant's preexisting mental disease or defect. If it does so, and the mental disease or defect then causes the defendant to lose the substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law, the defendant is not criminally responsible for his conduct.

[Continue as follows where there is evidence of defendant's knowledge:]
"There is one exception to the principle just stated. A defendant who loses the substantial capacity I have just described after he consumes drugs or alcohol, who knows or had reason to know that consumption would trigger or intensify in him a mental illness or condition that could cause him to lack that capacity, is criminally responsible for his resulting conduct. In deciding what the defendant had reason to know about the consequences of his consumption of drugs or alcohol, you should consider the question solely from the defendant's point of view, including his mental capacity and his past experience with drugs or alcohol. But you must keep in mind that ... 

or
[Continue as follows where there is no evidence of a defendant's knowledge:

"You must also keep in mind that ...] ... where a defendant, at the time the crime is committed, has a mental disease or defect that itself causes him to lack the substantial capacity that I have just described, he is not criminally responsible for his conduct regardless of whether he uses or does not use alcohol or drugs. That is true even if he does use alcohol or drugs and the alcohol or drug use makes the symptoms of his mental disease or defect worse, and even if he knew they would make his symptoms worse.

"Remember that the Commonwealth must prove to you beyond a reasonable doubt that the defendant was sane at the time the crime was committed, that is, that the defendant did not lack criminal responsibility at that time. It is the Commonwealth's burden to prove, at the time of the crime, at least one of the following facts beyond a reasonable doubt: 

"that the defendant did not suffer from a mental disease or defect; or 

"that if the defendant did suffer from a mental disease or defect, he nonetheless retained the substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law; or 

"that if the defendant lacked the substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to legal requirements, his lack of such capacity was solely the result of voluntary intoxication by alcohol or other drugs; or 

"that if the defendant lacked the substantial capacity I have just described due to a combination of a mental disease or defect and his voluntary consumption of alcohol or other drugs, he knew or should have known that his use of the substance[s] would interact with his mental disease or defect and cause him to lose such capacity.

"If the Commonwealth has failed to prove at least one of these four facts beyond a reasonable doubt, then you must find the defendant not guilty by reason of lack of criminal responsibility." 

Gambling bill text available

The legislature has partially unveiled a new gambling bill which has the backing of the house and senate leaders as well as the governor. The bill has not been posted to the web as of this writing, but we have the bill available to email if anyone would like to review it in detail. We will update our Gambling page when the bill is posted on the General Court web site.
Contact us through our document delivery page , or through your local law library.

"Service animals" definition narrowed by DOJ

Recently the regulations of the Department of Justice were amended to clarify the definition of service animals for public accommodation. 28 CFR 36.104 (page 56250) has been changed to limit the application to animals who's "work or tasks performed by a service animal must be directly related to the handler’s disability." It goes so far as to add that "The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition." For more information, see our page on the Law of Service Animals.

Guardianship and Conservatorship Resources

The Massachusetts Guardianship Association has two helpful booklets. Handbook for Massachusetts Guardians  includes the rights of incapacitated persons, the obligations of guardians and terminating guardianship. Handbook for Massachusetts Conservators explains the rights of individuals and the obligations of conservators, as well as how to terminate the conservatorship.

More information is available at our Law About Guardianship and Conservatorship.

AG Bid Protest Decisions Now Available Online

Bid protest decisions regarding disputed public construction contracts in Massachusetts are now available online under a transparency initiative announced Wednesday by Attorney General Martha Coakley.  The database available on the attorney general's web site covered decisions dating back to 2003 and also includes some decisions from 1989 until 2002 with more on the way.  In a statement, Coakley said the decisions help ensure that contracts are awarded in a fair and transparent manner and said the decisions offer guidance to state agencies, cities and towns, and contractors.  The attorney general's Bid Unit has been enforcing public bidding laws since 1993, when it assumed the responsibility from the former Department of Labor and Industries. 

These and other agency decisions are available from our Mass. Agency and Commission Decisions and Bulletins. 

When is a General Ordinance Really a Zoning Ordinance?

When it limits off-street parking on private property of single-family residences, according to the Appeals Court in Spenlinhauer v. Town of Barnstable, decided yesterday.  The ordinance in question was a general ordinance that limited the number of motor vehicles that could be parked "overnight, offstreet and in the open outside a single family dwelling."  The court ruled that "the town's attempt to use its general ordinance power to regulate off-street parking undercuts "the assorted protections contained in" c. 40A, in the process frustrating the purposes for which c. 40A was enacted." In conclusion, the court (McHugh, J.) stated:

"The bylaw does not simply focus on individual applications for activities in which a landowner wishes to engage but instead regulates parking on all land in single-family residence zones. Finally, although the town claims that the ordinance was enacted as a health measure pursuant to the town's general police power, there is on this record no nexus between public health and overnight off-street parking. Indeed, it is difficult to conjure a menace to public health that arises as the sun sets over unoccupied vehicles parked on the grounds of the house where their owners reside."

Jury Can't Re-Deliberate After Expressing Doubt After Verdict

In Commonwealth v. Lassiter, decided by the Appeals Court today, a jury announced a guilty verdict, but one juror spontaneously expressed doubt to the judge who came to speak to them after they left the courtroom. "On her own initiative, but without objection from either side, the judge then struck the OUI verdict and instructed the jury to redeliberate on that charge." The Appeals Court held that a jury cannot be called back to re-deliberate once a verdict has been accepted.

"Once a verdict has been affirmed by the jurors and recorded by the clerk, a judge is generally precluded from inquiring into alleged improprieties in the jury's deliberations or decision-making. See Commonwealth v. Brown, 367 Mass. 24, 28 (1975); Commonwealth v. Fidler, 377 Mass. 192, 196-198 (1979); Commonwealth v. Martell, 407 Mass. at 294-295. "Juror testimony concerning the mental processes of jurors during deliberations ... is not permitted to impeach a verdict." Cassamasse v. J.G. Lamotte & Son, Inc., 391 Mass. 315, 317-318 (1984). See Commonwealth v. Pytou Heang, 458 Mass. 827, 858 (2011). See also Mass. G. Evid. § 606(b) (2011).

"Thus, a judge generally cannot inquire into, or set aside, a recorded verdict on account of a juror's post-hoc statement that he or she disagreed with the verdict. See Commonwealth v. Dias, 419 Mass. 698, 702-703 (1995); Commonwealth v. Pytou Heang, supra. "Tension between jurors favoring guilt and those favoring acquittal is part and parcel of the internal decision-making process of jury deliberations." Commonwealth v. Mahoney, 406 Mass. 843, 855 (1990). "Whatever disagreement that a juror may have secretly entertained but did not indicate in open court may not be the basis for reversal." Commonwealth v. Lawson, 425 Mass. 528, 532 (1997). Once the juror affirms or acquiesces in the verdict as announced in open court, then "neither [his] change of heart nor [his] subsequent disclosure of a subjective disagreement with [his] apparent vote provides a basis for vacating the verdict." Commonwealth v. Dias, supra at 703. 

"Applying these principles, we conclude that the judge erred when she struck the first recorded verdict. "The jury's verdict was apparently unanimous, and any juror's inadequately disclosed, subjective disagreement with the verdict as announced cannot be the basis for vacating it ..." (footnote omitted). Commonwealth v. Dias, supra at 701-702."

Is Discovery Rule Applicable When Leak Later Leads to Toxic Mold?

The Appeals Court issued an opinion today in Doherty v. Admiral's Flagship Condominium Trust, which takes on the issue of whether the discovery rule applies when a leak occurs outside the statute of limitations period causing mold infiltration sometime later. The court said it does:

"The question whether the discovery rule applies to circumstances involving a water intrusion outside the limitations period, followed by the later development and discovery of toxic mold, is novel and has not yet been addressed in Massachusetts. Other jurisdictions that have addressed it have applied the rule to such cases. Those courts have held, at the least, that "when the claimant in a toxic mold case experiences physical symptoms that would cause an ordinary person to make an inquiry about the discovery of the cause of the symptoms, that is the point at which the statute of limitations begins to accrue." Gerke v. Romero, 148 N.M. 367, 372 (Ct.App.2010). See Gleason v. Borough of Moosic, 15 A.3d 479, 486-487 (Pa.2011) (discovery rule tolled statute of limitations to time when plaintiffs knew or should have known cause of their physical injuries, an issue of fact for jury where plaintiffs did not link their health problems to hazardous mold until several years after flooding incident in their home); Dutton v. Farmers Group, Inc., No. E2009- 00746-COA-R3-CV, 2010 Tenn.App. LEXIS 395, at 22-23 (Tenn.Ct.App. June 22, 2010) (discovery rule tolled the statute of limitations where "[t]oxic mold spores were a latent problem concealed within [p]laintiffs' home" that did not become apparent until years after flooding); Pirtle v. Kahn, 177 S.W.3d 567, 572-573 (Tex.Ct.App.2005) (applying discovery rule, plaintiff's cause of action accrued "when she found the leak in her apartment, saw the mold, and immediately drew the inference that the mold caused her illnesses," despite her experiencing health problems for years before discovering the mold)."

"We agree with the foregoing cases that without some indication of a hazardous contamination, the plaintiff could not have been aware that she was being exposed to toxic mold, regardless of when the leak began. Contrary to the defendants argument, it is not a certainty that all water infiltration will eventually evolve into toxic mold. To conclude otherwise would encourage, and possibly even require, a plaintiff to preemptively file suit the moment water starts to infiltrate a dwelling or other building, before any mold or mold-related injury has even occurred. "

Happy Tax Holiday Weekend!

St. 2011, c.86 created a tax holiday weekend this Saturday and Sunday August 13-14. Our helpful Mass. Department of Revenue prepared a "Technical Information Release," TIR-11-7: The 2011 Massachusetts Sales Tax Holiday Weekend that covers pretty much everything there is to know about the law and its limitations. It also includes helpful information for retailers.

And if you don't want to shop on this beautiful summer weekend, remember that sales tax in Massachusetts is 6.25% . A 6.25% sale on any other day would actually save you a little bit more money than the tax holiday (a $10 item would cost $10 on the tax holiday and $9.96 if you saved 6.25% and then paid tax). So shop or go to the beach and enjoy!

New School Immunization Requirements

The Dept of Health and Human Services has issued Mass. School Immunization requirements for the 2011-2012 School Year. Additional requirements have been issued for entry to  kindergarten, 7th grade, college freshman and health science students.

Their memo to schools, Revisions to the Regulation Specifying Immunizations Required for Entry to School,  summarizes  the changes  and  compares them to the previous requirements.

For more information on vaccination and immunization, see our new page, Massachusetts Law About Vaccination and Immunization.

New Regulations Expedite Treatment of Chlamydia for Sex Partners

Amendments to 105 CMR 700 and 721 approved yesterday allow doctors and other health practitioners to prescribe or provide antibiotics to the sex partners of patients with chlamydia without seeing the partners directly. "Known as Expedited Partner Therapy (EPT), this practice involves presumptively treating the sex partners of people diagnosed with chlamydia infection without first examining or testing the partner. EPT helps interrupt the spread of disease by getting treatment to people who might otherwise remain untreated."

Today's Boston Globe quotes Dr. Anita Barry, director of the infectious disease bureau of the Boston Public Health Commission. "As for the concern about antibiotic overuse - an issue that disease trackers say is responsible for creating antibiotic-resistant super bugs - Barry said the benefits of providing prescriptions for sexual partners of chlamydia patients far outweigh the risks. “It’s really a one-hit, high-dose, kill-what’s-there, and you’re done,’’ Barry said."

Urban Open-Air Mobile Library

In A new chapter for urban readers, today's Boston Globe highlights a cool new idea from the creators of the former Storefront Library in Chinatown: The Uni: a portable, open-air reading room for public space. Not your parents' bookmobile,

"the Uni is a new type of small-scale, portable institution that puts books and learning experiences such as readings, classes, and screenings where we don't regularly see them in the city. It can be installed in various configurations at different scales, and it can thrive in a variety of locations, efficiently transforming areas within parks, plazas, or empty lots into places of community use, learning, and public engagement." 

"The Uni starts with a custom-designed infrastructure that can be adapted to almost any kind of urban space. It consists of 144 open-faced cubes, which can be stacked and locked together in different configurations or heights, depending on site conditions. Together these cubes provide a modular system for programming public space and creating a venue for books, workshops, arts-and-crafts, demonstrations, classes, lectures, public meetings, and small film screenings."

Pictures at the project's site are very exciting. We only wish they were doing it here!

History of Legal Ownership of Cats

In Comm. v. Epifania, decided today, the Appeals Court outlines the history of the legal ownership of cats (and dogs) in Massachusetts, and criminal responsibility for stealing or harming them:

"At common law, cats did not receive through ownership by human beings the same legal protection provided to some other animals. Thus, as the Supreme Judicial Court explained over 140 years ago in Blair v. Forehand, 100 Mass. 136, 140 (1868), at common law, an individual could not be prosecuted for larceny of a cat (or a dog) "even in a state of domestication." There was thought to be "no absolute and valuable" property interest in such animals. Ibid. The same was not true with respect to "[b]easts which have been thoroughly tamed, and are used for burden or husbandry, or for food, such as horses, cattle and sheep" which were viewed as "property of intrinsic value." Ibid.

"Consistent with this, for 150 years, starting in 1836, § 112 and its predecessors provided criminal punishment for the wilful and malicious killing of "any horse, cattle, or other beast of another person." Pub. Stats. 1882, c. 203, § 93. See Rev. Stats. 1836, c. 126, § 39 ("any horses, cattle or other beasts of another person"); Gen. Stats. 1860, c. 161, § 80 ("any horses, cattle, or other beasts, of another person"). In 1986, in apparent recognition of a more modern view, the Legislature amended § 112, so that it now refers to the malicious killing not of "beast[s]," a limited category, but of "animal[s] of another person.""

Right to Classification Hearing Not Waived by Failure to Appear

In Doe v. Sex Offender Registry Board, the Supreme Judicial Court decided Friday that the Sex Offender Registry Board exceeding its authority in enacting 803 CMR 1.13(2). The regulation reads:

"(2) Failure of the sex offender to appear at the scheduled hearing without good cause shown shall result in the waiver of the right to a hearing and the registration determination and, if applicable, the recommended classification becoming the final Sex Offender Registry Board decision and shall not be subject to judicial review. Notification of such decision shall be accomplished in accordance with 803 CMR 1.25. In addition, law enforcement shall be notified in accordance with 803 CMR 1.27."

The court held:

"Because the Legislature specified only that the classification hearing is waived where the sex offender does not timely request a hearing, we conclude that the board lacked the authority to declare the hearing waived where a sex offender requests a hearing and the sex offender's attorney is present at that hearing." 

"We conclude, therefore, that the board's regulation exceeds the scope of its legislative mandate by declaring that a sex offender who has asked that the board be put to its burden and whose attorney is present and prepared to challenge the recommended classification waives the right to a classification hearing by failing to appear without good cause."

Level 3 Sex Offender Not Automatically Barred from Rest Home

In Doe v. Boston Police Commissioner, decided Friday, the Supreme Judicial Court held that a level three sex offender was entitled to a hearing before  MGL c.6, s.178K (2)(e) (barring level three offenders from rest homes) could be applied against him.

"Even assuming that some level three sex offenders in long-term care facilities pose a danger to other residents, others--perhaps especially those who have no history of assaults against adult victims--pose no particular danger to the population the policy aims to protect and are fully capable of contributing positively to rest home communities.... In light of the further encroachment on the plaintiff's liberty and property interests imposed by the statute that places limitations on where he may reside, which is further heightened by his circumstances, the plaintiff must have an opportunity to establish that he poses minimal risk to the community the statute was intended to protect and, if removed from the rest home, will likely become homeless and expose himself to significant harm."

"In order to protect his liberty and property interests in continued residence in the rest home--to which he was admitted and where he chooses to live--the plaintiff is entitled to a meaningful opportunity to be heard before § 178K (2) (e ) may be enforced against him. Because the statute does not provide for, or permit, such an individualized determination, as applied to the plaintiff it violates due process of law under the Fourteenth Amendment to the United States Constitution and arts. 10 and 12 of the Massachusetts Declaration of Rights. The matter is remanded to the county court where a declaration shall enter stating that, as applied to the plaintiff, G.L. c. 6, § 178K (2) (e ), does not comport with the due process clause of the Fourteenth Amendment and arts. 10 and 12, and cannot be enforced against him."