Interested parties may file their briefs in the Office of the Clerk for the Commonwealth, John Adams Courthouse, Suite 1-400, One Pemberton Square, Boston MA 02108-1724.  Phone: 617-557-1020 

Parties filing amicus briefs are expected to comply with the requirements of Rules 17,19 and 20 of the Massachusetts Rules of Appellate Procedure. Amicus briefs, to assist the court, should focus on the ramifications of a decision and not solely on the interests of the parties filing such briefs. Amicus submissions are due no later than two weeks before the first day of the sitting in which the case is scheduled for argument.

The Supreme Judicial Court is soliciting amicus briefs or memoranda from interested parties in the following matters pending before the court:  

July 2014 Announcements

SJC-11718 
Commonwealth vs. Jaime Caetano

Whether G. L. c. 140, § 131J, which criminalizes the private possession of so-called “stun guns,” infringes on the Second Amendment right to keep and bear arms as defined by the Supreme Court’s Heller and McDonald decisions; whether, and how, the Second Amendment protection applies outside one’s “home” in the case of a homeless person.

SJC-11715 
Chester Chin vs. Edith E. Merriott

Whether the provision of the Alimony Reform Act concerning suspension, reduction, and termination of general term alimony based on a recipient spouse’s cohabitation with another – see G. L. c. 208, § 49 (d), added by St. 2011, c. 124, § 3 – applies to a divorce judgment that predates the act, where the cohabitation began before the effective date of the act and continues after the act became effective; and whether the provision of the act concerning the termination of general term alimony when the payor spouse attains full retirement age – see G. L. c. 208, § 49 (f), added by St. 2011, c. 124, § 3 – applies to a divorce judgment that predates the act, where the payor reaches retirement age after the effective date of the act.

SJC-11711 Scott C. Sherman vs. Town of Randolph & others
SJC-11713 Kristin Malloch vs. Town of Hanover & others

Whether the Human Resources Division may, pursuant to G. L. c. 31, § 5 (1), delegate to the appointing authority the receipt of statements of reasons supporting bypass appointments and promotions.

SJC-11716 Commonwealth vs. Craig McGhee
Whether a defendant who coerces another to withdraw, and hand over, money from his or her bank account via an automated teller machine violates G. L. c. 265, § 21 (“Whoever, with intent to commit larceny or any felony, confines, maims, injures, or wounds, or attempts or threatens to kill, confine, maim, injure, or wound, or puts any person in fear, for the purpose of stealing from a building, bank, safe, vault, or other depository of money . . . or by intimidation, force or threats compels or attempts to compel any person to disclose or surrender the means of opening any building, bank, safe, vault, or other depository of money . . . shall whether he succeeds or fails in the perpetration of such larceny or felony, be punished . . .”).

SJC-11712 
Commonwealth vs. Damien Didas

Whether the changes in drug trafficking weights effected by the 2012 crime bill – see St. 2012, c. 192, §§ 20 & 21 – apply to pending and future cases in which the charged offenses were committed before the effective date of the act.

SJC-11714 
Commonwealth vs. Juan Pagan

Whether the trial judge erred in reducing the verdict from murder in the first degree to murder in the second degree, pursuant to Mass. R. Crim. P. 25 (b) (2), based on what she perceived to be weak, albeit sufficient, evidence of deliberate premeditation and her consideration of the defendant’s youth (sixteen years old at the time of the offense), untreated mental condition (ADHD), developmental immaturity, and family neglect, all of which, the judge found, caused or contributed to his impulsiveness.

SJC-11709 
Commonwealth vs. Bryant Ware

Whether the defendant, who pleaded guilty in 2011 to multiple drug-related offenses, was erroneously denied postconviction discovery under Mass. R. Crim. P. 30 (c) (4), specifically, comprehensive retesting of numerous drug samples that had previously been tested by Sonja Farak, a chemist at the State drug lab in Amherst who subsequently pleaded guilty to tampering with evidence at the lab, to determine whether Farak was engaged in such misconduct at the time the substances in his case were tested.

SJC-11704 
David Brendel vs. K.I.

Whether, and how, the psychotherapist-patient privilege (G. L. c. 233, § 20B) applies in involuntary commitment proceedings under G. L. c. 123, §§ 7-8; in particular, whether, the privilege bars the admission of statements made by a patient to a psychotherapist, and opinions based on such statements, absent a knowing and intelligent waiver of the privilege.

SJC-11672 
Commonwealth vs. Robert DiCicco

Whether, on the defendant’s motion for a new trial, the judge erred in ruling that the defense expert’s opinion – to the effect that the limited DNA data was sufficient to exclude the defendant as a contributor to the male DNA present on the victim’s jeans – was not admissible under the Daubert-Lanigan standard; and whether the judge could take judicial notice or otherwise find that, “[i]n the early 1980s barrier gloves were not used when clothing was handled by police, prosecutors, defense attorneys, jurors, and clerks.”

SJC-11697 
In re:  Grand Jury Investigation

Where the Commonwealth sought and obtained judicial approval, pursuant to Mass. R. Prof. C. 3.8 (f), for a grand jury subpoena to compel a law firm that formerly represented the target of a grand jury investigation to produce a cellular telephone allegedly provided by the target to the firm for purposes of bona fide legal representation, and where the judge found probable cause to search the contents of the telephone, whether the subpoena may be challenged on the ground that it is inconsistent with G. L. c. 276, § 1, the target’s constitutional rights under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights, or otherwise.

SJC-11699 
Commonwealth vs. Keial Kimbroughtillery

Whether principles of collateral estoppel bar a second probation revocation proceeding that is based on the same charged misconduct that was litigated in a prior probation revocation proceeding.

June 2014 Announcements

SJC-11661 
Nesto Monell vs. Boston Pads LLC

Whether, as the motion judge ruled, the so-called independent contractor statute, G. L. c. 149, § 148B, conflicts with the statutes governing licensing of real estate salespersons, G. L. c. 112, § 87PP, et seq., and is therefore inapplicable to real estate salespersons.

SJC-11658 
DIRECTV LLC vs. Massachusetts Department of Revenue

Whether G. L. c. 64M, which imposes an excise on direct broadcast satellite service, is discriminatory in its purpose and effect, by imposing the excise on satellite providers of pay-TV service but not on cable providers, and therefore violates the dormant commerce clause and equal protection clause of the Federal constitution.

SJC-11659 
Commonwealth vs. Emmanuel Okoro

Whether a juvenile charged with murder is entitled to present expert evidence on, and have the jury consider, his youth as a factor negating malice; whether a juvenile convicted of murder in the second degree, and sentenced to the statutorily-mandated term of life imprisonment with the possibility of parole after fifteen years, suffers a constitutional violation because the sentencing judge has no opportunity to take the juvenile’s youth into account when sentencing.

SJC-11663 
Commonwealth vs. Jeffrey Asher

Whether the defendant, a police officer charged with assault and battery stemming from his use of force in the performance of official duties, was entitled to a jury instruction regarding the so-called police privilege, including a description of when an officer is entitled to use reasonable and necessary force in the performance of duties.

SJC-11660 
Commonwealth vs. William P. Johnson & another

Whether the criminal harassment statute, G. L. c. 265, § 43A, prohibits so-called cyber harassment, e.g., where a defendant posts a false advertisement on the Internet that causes unwitting third parties to contact the targeted individual; whether the application of the statute in these circumstances impermissibly punished constitutionally protected speech.

SJC-11653 
Clayton Schwann & others vs. Fedex Ground Package System, Inc.

“1.  Does the employee misclassification test under [G. L. c. 149, § 148B,] determine the employee status of a worker seeking to recover from an employer the cost of workers’ compensation insurance premiums under the Wage Act?”
“2.  Does the Wage Act prohibit a contractual arrangement in which an employee agrees to have sums deducted from his earnings for employer-supplied accouterments and equipment that are necessary for the employee’s performance of the job, specifically in this case mandatory uniforms and package scanners for package pick-up and delivery drivers?”
“3.  Does the Wage Act prohibit a contractual arrangement in which an employee agrees to pay a third party (without reimbursement) for expenses such as vehicle maintenance and operation, that are necessary for the performance of the job?”  (Certified questions)

SJC-11677 
Lisa Reckis & another vs. Johnson & Johnson & another

Whether the plaintiffs’ failure to warn claim – i.e., that the label on the defendants’ drug should have instructed the consumer to discontinue usage if certain symptoms manifested – was preempted by Federal law on the theory that the proposed warning would have directly conflicted with Federal requirements, making it impossible for the defendants to comply with both Federal law and a State common law duty to warn; whether the award of $63 million in compensatory damages – $50 million for the injured child and $6.5 million for each of her parents – was, as the defendants argue, unsupported by the evidence, essentially punitive, and subject to the due process limits on punitive damages.

SJC-11678 
Suzanne Palitz vs. Zoning Board of Appeals of Tisbury & another

Whether a nonconforming lot created by an “approval not required” division of a larger, preexisting nonconforming lot, see G. L. c. 41, § 81L, loses its lawful status under G. L. c. 40A, § 6, requiring a variance in order to build.

SJC-11682 
Chief of Police of Worcester vs. Raymond J. Holden

Whether the Second Amendment right to keep and bear arms extends outside of one’s home, thus requiring the license to carry statute, G. L. c. 140, § 131, to be construed and applied in light of that constitutional protection; whether the “suitable person” standard in § 131 (d) is unconstitutionally vague and overbroad on its face and as applied to this defendant; whether the statute deprives applicants and licensees of procedural due process both before and after licenses are denied, suspended, or revoked.

SJC-11680 
Commonwealth vs. Alex Ramos

Whether the motion judge erred in denying the defendant’s motion to suppress by relying, in part, on the so-called “accomplice sweep” exception to the warrant requirement

SJC-11679 
Commonwealth vs. Manuel Arzola

Whether the extraction of DNA evidence from an item seized without a warrant constitutes a separate search for which a warrant is required prior to conducting any testing of the DNA evidence.

SJC-11688 
Gregory Diatchenko vs. District Attorney for the Suffolk District & others

“1.  Whether, in order to ensure that the petitioner and other similarly situated juvenile homicide offenders receive the ‘meaningful opportunity to obtain release’ that is required by the court’s opinion [in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013)], they must be afforded:
“a.  the right to the assistance of counsel at their parole hearings, including the right to have counsel appointed if they are indigent; and

“b.  the right to public funds, if they are indigent, in order to secure reasonably necessary expert assistance at the hearings.

“2.  Whether, in order to ensure that the petitioner and other similarly situated juvenile homicide offenders receive the ‘meaningful opportunity to obtain release’ that is required by the court’s opinion, there must be an opportunity for the petitioner or s similarly situated individual who is denied parole to obtain judicial review of the parole board’s decision, and, if so, what form the judicial review will take.”  (Reported questions)
This case is paired for argument with SJC-11689, Commonwealth vs. Jeffrey S. Roberio, and will be heard at the court’s October, 2014, sitting.  Refer to the court order dated June 5, 2014, with respect to the time for filing amicus briefs.

SJC-11689 
Commonwealth vs. Jeffrey S. Roberio

Whether the defendant, who is currently serving a life sentence on a conviction of murder in the first degree for an offense committed when he was a juvenile, was entitled to funds pursuant to Mass. R. Crim. P. 30 (c) (5) for the assistance of an expert in connection with his resentencing and at his hearing before the Parole Board, which he claims is part of the sentencing process in the circumstances of his case.
This case is paired for argument with SJC-11688, Gregory Diatchenko vs. District Attorney for the Suffolk District & others, and will be heard at the court’s October, 2014, sitting.  Refer to the court order dated June 5, 2014, with respect to the time for filing amicus briefs.

April 2014 Announcements

SJC- 11654   
Patricia Campatelli v. Paula M. Carey, et.al.

The justices are seeking amicus briefs as to the authority of the Chief Justice of the Trial Court, the Court Administrator of the Trial Court, and the Chief Justice of the Probate and Family Court, pursuant to G. L. c. 211B, §§ 9, 9A, 10, respectively, or other relevant authority, and in consideration of G. L. c. 211, § 4, to place a Register of Probate and Insolvency of the Probate and Family Court on paid administrative leave pending an investigation. Argument scheduled for May 2014.

March 2014 Announcements

SJC-11638   
Thomas C. Abate vs. Fremont Investment & Loan

Where foreclosure proceedings have been commenced against a mortgagor in possession of and holding record title to real property, whether the mortgagor may use the try title statute, G. L. c. 240, §§1-5, to challenge the proceedings; and whether, in these circumstances, the purported mortgagee may bring a motion to dismiss to challenge the mortgagor's try title action.

SJC-11645   
James R. Mitchell vs. City of Worcester

Where an employee who has died as a result of a work related accident and the surviving spouse has received the maximum allowable benefits pursuant to G. L. c. 152, §31, and must demonstrate that she is not "self-supporting" in order to continue to receive benefits, whether tort settlement proceeds received by the surviving spouse in a separate action related to the employee's death should be considered in assessing whether she is "self-supporting;" and whether, if so, what method should be used to determine whether the proceeds render the spouse "self-supporting" (e.g., a pay-down method, a prorated method based on the surviving spouses' life expectancy, or some other method).

SJC-11636   
Anita Machado Erdei v. Well Fargo Bank, N.A.

Where a homeowner secures a mortgage from a Federal savings and loan association that subsequently merges with a national bank, whether any State law claims that the homeowner may have related to a mortgage foreclosure are preempted by the Federal Home Owners' Loan Act, 12 U.S.C. §§1461-1468.

SJC-11643   
Commonwealth vs. Sean Evelyn

Whether a defendant is deprived of due process and his right not to incriminate himself when, in an opening statement of a criminal trial, his counsel effectively concedes the defendant's guilt on a lesser offense, but there is no colloquy with the defendant to ensure that the concession was knowing and voluntary on his part; in other words, whether due process requires anything more than the effective assistance of counsel in such circumstances.

SJC-11639   
Commonwealth vs. Walter Crayton

Whether the court should adopt the recommendation of the SJC Study Group on Eyewitness Evidence, that "in-court identification not be permitted except, in the judge's discretion, on redirect examination, in rebuttal, or in other circumstances where the defendant challenges the witness's ability to make such identification."

SJC-11641   
Steven P. Abdow & others vs. Attorney General & another

Whether the Attorney General erred in refusing to certify the initiative petition entitled "Initiative Petition for a Law to Prohibit Casino Gambling" for inclusion on the Statewide ballot in November, 2014, on the ground that it is inconsistent with "[t]he right to receive compensation for private property appropriated for public use" (see art. 48, The Initiative, II, 
§2, of the Amendments to the Massachusetts Constitution). Scheduled for Argument in May.  

February 2014 Announcements

SJC-11612 
Easthampton Savings Bank, et al v. City of Springfield

1. "Are Springfield's municipal ordinances Chapter 285, Article II, 'Vacant or Foreclosing Residential Property' (the Foreclosure Ordinance) or Chapter 182, Article I, 'Mediation of Foreclosures of Owner-Occupied Residential Properties' (the Mediation Ordinance) preempted, in part or in whole, by those state laws and regulations identified by the plaintiffs?"

2. "Does the Foreclosure Ordinance impose an unlawful tax in violation of the Constitution of the Commonwealth of Massachusetts?"  (Certified questions from United States Court of Appeals for the First Circuit).

SJC-11616 
Commonwealth vs. Amanda Kelly & others

Whether, in a prosecution under G. L. 265, §39, it was sufficient for the judge to instruct the jury that they had to determine if the defendants acted “with the specific intent to intimidate [a] person because of such person’s race, color, religion, national origin, sexual orientation, gender identity, or disability,” without instructing that the defendant’s discriminatory intent must be a “predominant” or “substantial” reason for the assault.

SJC-11618 
Ron Meshna & others vs. Constantine Scrivanos & another
Whether an employer may, consistent with G. L. c. 149, §152A, impose a no-tipping policy at his establishment, effectively discouraging patrons from leaving tips for his wait staff employees and prohibiting the employees from accepting tips.

SJC-11621 
Donald Thomas Scholz vs. Boston Herald, Inc. & others
Whether the statements published by the defendants, suggesting that the plaintiff was responsible for his former colleague’s suicide, were, as the judge concluded, matters of opinion and not actionable assertions of fact for defamation purposes.  This case is paired for argument with SJC-11511, Donald Thomas Scholz & another vs. Micki Delp.)

SJC-11619
Commonwealth vs. Angel Santiago
Whether Massachusetts should recognize “target standing” under art. 14 of the Massachusetts Constitution, such that an individual who is the target of a criminal investigation can challenge unconstitutional conduct toward a third person (e.g., an illegal search and seizure) that is intended to yield evidence against the target.

SJC-11613 
Commonwealth v. Ronald Watts, et. al
Whether the September 18, 2013 amendments to G. L. c. 119, §52, et seq., effected by St. 2013, c. 84 -- extending Juvenile Court jurisdiction and the protections of the juvenile justice system to seventeen year olds -- apply retroactively to individuals who were seventeen years old when they committed an offense and against whom criminal proceedings had already begun and were pending on September 18, 2013. Scheduled for March argument.

January 2014 Announcements

SJC-11603     
Brian S. Hickey & others vs. Pathways Ass'n, Inc. & others
Where no easement is shown on a certificate of title to registered land, whether, absent actual notice, the owner may nevertheless be estopped to deny the existence of a way shown on a registered land plan or described in other certificates of title or documents within the land registration system; if the doctrine of easement by estoppel applies to registered land, whether any such easement extends to all ways shown on a registered land plan, is limited only to those ways that provide necessary or convenient access to a particular parcel, or is otherwise limited.

SJC-11609    
The First Marblehead Corp. & another vs Commissioner of Revenue
Where a taxpayer has no "regular place of business" as defined in G. L. c. 63, §1, but has its commercial domicile in Massachusetts, whether the Appellate Tax Board erred in applying the presumption contained in G. L. c. 63, §2A(e)(vi)(B), to conclude that the "preponderance of substantive contacts regarding" the business in question - student loans - occurred in Massachusetts, where the loans were serviced by third parties in other States; whether the board erred in construing G. L. c. 63, §2A(e)(vi), to require proof of an agency relationship as a predicate to imputing activities of third parties to a taxpayer.

SJC-11607    
John Doe No. 34186 vs. Sex Offender Registry Board
Where the plaintiff was charged in a military court with violations of article 133 ("conduct unbecoming an officer and a gentleman") and article 134 ("all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital,") of the Uniform Code of Military Justice, and pleaded guilty to those charges, whether he was thereby subject to the registration and classification provisions under G. L. c. 6, §178C, et seq., where the charging instruments in the military proceeding specified, as the underlying bases for those charges, various acts that included Federal sex offenses; whether the plaintiff's military convictions do not support registration and classification under c. 6, §178C, et seq., because, as the judge stated, "[m]ilitary defendants in courts-martial are not provided with the same constitutional protections as defendants in civilian criminal courts."

SJC-11608    
Bay Colony Railroad Corp. vs. Town of Yarmouth & another
In a breach of contract case where the defendant claims that G. L. c. 160, §70A, prohibits the plaintiff from performing its obligations under the contract, whether c. 160, §70A, is preempted by the Federal Aviation Administration Authorization Act, 49 U.S.C. §14501(c)(1).

SJC-11604    
John Doe No. 3839 vs. Sex Offender Registry Board
Whether the sex offender registration law, G. L. c. 6, §§178C-178P, et seq., can constitutionally be applied retroactively to individuals who, as juveniles, committed sex offenses before the law was enacted.

SJC-11602    
Commonwealth vs. Gerald Russell
Whether the Federal pattern jury charge on proof beyond a reasonable doubt, unaccompanied by the "abiding conviction" language from Commonwealth v. Webster, 5 Cush. 295 (1850), suffices to define proof beyond a reasonable doubt in Massachusetts.

SJC-11600     
Conservation Law Foundation, Inc.  vs.  Energy Facilities Siting Board
I.  Whether approval under G. L. c. 164,  §69J1/4, of a petition to construct a new power generating facility requires a determination that the project is consistent with the Massachusetts Global Warming Solutions Act, G. L. c. 21N.

If so, whether

1) reliance on two hypothetical "2050 scenarios" that were included in the Massachusetts 2020 Clean Energy and Climate Plan is reasonable to establish consistency with the Massachusetts Global Warming Solutions Act, G. L. c. 21N; and

2) there was a valid basis to determine that the plan for a proposed gas-fired power plant on Salem Harbor has demonstrated consistency with the environmental and health policies in the Massachusetts Global Warming Solutions Act, G. L. c. 21N;

II.  Whether plans for a proposed new gas-fired power plant on Salem Harbor meet the requirement of G. L. c. 164, § 69J1/4, that they are "consistent with the current health and environmental policies of the Commonwealth."

III.  Whether approval of a new natural gas-fired power plant project on Salem Harbor comports with the requirements of G. L. c. 30, §61, that the board issuing the permit consider "reasonably foreseeable climate change impacts, including additional greenhouse gas emissions, and effect, such as predicted sea level rise."

Arguments scheduled for March 2014.

December 2013 Announcements

SJC-11594            
M. David Cohen vs. Shelley Cohen
Whether, under 28 U.S.C. §1738B and G. L. c. 209D, §6-611, the Probate and Family Court had subject matter jurisdiction to enforce a stipulation entered in Massachusetts contempt proceedings concerning a child support order issued in California and registered in Massachusetts, where, according to the husband, the stipulation modified his child support obligations.

SJC-11593            
Commonwealth vs. Carl Liebenow
Whether an individual can be convicted of larceny when he takes property that he honestly (yet mistakenly) believes is abandoned; whether, to support the defense of mistake, his belief must be objectively reasonable as well.

SJC-11583 
Commonwealth vs. John K. Rollins
Whether a defendant who possesses, in the same place and at the same time, multiple digital images depicting child pornography can be prosecuted and sentenced on multiple counts of violating G. L. c. 272, §29C, one count for each image; or whether the correct unit of prosecution is a single count for possession with a single sentence. Argument scheduled for Spring 2014.

SJC-11584 
Flor Ortiz vs. Examworks, Inc.
Where G. L. c. 90, §34M, provides that a medical examination conducted for purposes of determining personal injury protection benefits be conducted by a “physician,” whether such exam must be conducted by a medical doctor or whether the exam may be conducted by other types of medical professionals (e.g., physical therapists and chiropractors). Argument scheduled for Spring 2014.

November 2013 Announcements

SJC-11561      
Barron Chiropractic & Rehabilitation vs. Norfolk & Dedham Group
Whether an insurer can be liable for costs and attorney's fees in an action pursuant to G. L. c. 90, §34M, on a claim that it failed to pay PIP benefits in accordance with the statute, if the insurer, allegedly for business reasons unrelated to the merits of the litigation, tenders payment of the full amount of the disputed benefits after the commencement of the action but before a judgment has entered against it. Scheduled for March argument.

The following cases are all scheduled for argument in Spring 2014:

SJC-11580
David Fernandes vs. Attleboro Housing Authority
Whether the Superior Court lacked subject matter jurisdiction over the plaintiff’s Wage Act claims where the plaintiff was a public employee subject to the Civil Service Act, G. L. c. 31, and did not present his wage and retaliation claims to the Civil Service Commission; whether the Wage Act authorizes a court to order that the plaintiff be reinstated to his employment as a remedy for retaliatory discharge in violation of G. L. c. 149, §148A.

SJC-11578
Commonwealth vs. Nathaniel Fujita
Whether the judge violated the constitutional and common-law rights of public access to court proceedings and judicial records by refusing to furnish the media, after the jury were discharged, with the names and addresses of all jurors, citing the jurors’ right to privacy, and by providing instead the names and addresses of only those jurors who indicated, in response to an inquiry from the judge, that they were agreeable to speaking with the media.

SJC-11562
John Doe # 68549 vs. Sex Offender Registry Board
Where a sex offender sought to establish that he posed no risk of reoffending and therefore ought to be relieved of the obligation to register, whether the hearing officer and board failed to give appropriate consideration to the offender's status as a juvenile at the time of the offense (more than twenty years earlier) and to the proffered expert evidence, studies, and recent court decisions concerning the development of juvenile brains.

SJC-11563
Assabet Valley Regional Vocational Sch. Dist. vs. Ann Marie Speicher
Whether G. L. c. 71, §42D, which provides that a suspended school employee "may seek review of [her] suspension by following the arbitration procedures set forth in section forty-two," incorporates the "just cause" standard for imposing discipline under c. 71, §42, or only the procedural provisions of that section.

SJC-11564      
Michael Okeke & another vs. Dynamex Operations East, Inc.

(tentatively scheduled for Spring 2014 argument)

Whether, in this employment-related dispute, the defendant waived its right to assert reliance on an arbitration agreement signed by the plaintiffs, which would have required the parties to arbitrate in Texas, where it did not move to compel arbitration until more than two years after the action was commenced.

SJC-11566
Commonwealth vs. David St. Hilaire
Whether the crime of larceny - in this case larceny from a person sixty years of age or older, pursuant to G. L. c. 266, §30 (5) - can be proved by showing that the alleged victim did not have the mental capacity to understand a transaction that she entered into with the defendant - in this case, the sale of her real estate - and that the defendant knew or reasonably should have known that she was incapable of understanding the transaction.

SJC-11567
Commonwealth vs. Kenneth Johnson
Where a victim of a crime has failed to identify the defendant in an identification procedure such as a police line-up, whether the defendant is entitled to a modified identification instruction that informs the jury that they may consider the fact that the victim failed to identify the defendant as the perpetrator.

SJC-11568
Commonwealth vs. Joseph Sullivan
Whether the crime of accosting or annoying under G. L. c. 272, §53(a) - which proscribes "offensive and disorderly acts or language [that] accost or annoy persons of the opposite sex" - requires proof of sexual or sexually suggestive conduct; if so, whether the conduct must be explicit.

October 2013 Announcements

SJC-11519    
In Re:  Kenneth Wynne, III & others
"Under Mass. Gen. Laws ch. 104A, the Massachusetts fine art consignment statute . . . must a consignor transmit a written 'statement of delivery' to a consignee as a necessary prerequisite to the formation of a 'consignment'; or, alternatively, under Chapter 104A does a consignment arise upon the delivery by a consignor, and acceptance by a consignee, of a work of art for sale on consignment, regardless of whether a written 'statement of delivery' is sent by a consignor?"  (Certified question from the Bankruptcy Court). Tentatively scheduled for February 2014 argument.

SJC-11526    
Massachusetts Elec. Co. & Nantucket Elec. Co.vs. Department of Pub. Utilities

SJC-11527    
NStar Elec. Co. vs. Department of Pub. Utilities

SJC-11528    
Western Massachusetts Electric Co. vs. Department of Public Utilities

Whether the Department of Public Utilities erred in finding that the utilities violated the applicable standards of performance for emergency preparation or restoration of service established pursuant to G. L. c. 164, §1J, company standards, or recognized industry practice, in connection with the severe weather events of August and October, 2011. Scheduled for argument in March, 2014.

SJC-11532    
Trenea Figgs vs. Boston Housing Authority
Whether possession of one ounce or less of marijuana constitutes a "serious violation" of a Section 8 tenancy, justifying eviction of the tenant; whether, for purposes of Section 8, Federal law concerning controlled substances preempts G. L. c. 94C, §32L, which decriminalized the possession of one ounce or less of marijuana in Massachusetts. Argument is tentatively scheduled for February 2014.

SJC-11533    
Robert Roe Nos. 1-11 vs. Children's Hospital
Whether the defendant, a Massachusetts hospital, owed a duty of care to the plaintiffs, children in North Carolina who allegedly were put at risk of, and in fact suffered, sexual abuse by the defendant's former employee, as a result of the defendant's failure to report known incidents of sexual abuse by its employee that occurred while he worked for the defendant in Massachusetts. Argument is tentatively scheduled for February 2014.

SJC-11534    
Commonwealth vs. Harold Fay
Whether the sexually dangerous person statute, G. L. c. 123A, can constitutionally be applied to a defendant who poses a future threat of noncontact offenses only.  (This case is paired for argument with SJC-11445, Commonwealth vs. Henry Walker, and SJC-11486, Commonwealth vs. Daniel Almeida). Argument is scheduled for December 5, 2013.

SJC-11536    
Lexington School Committee vs. Mark Zagaeski
Whether an arbitrator exceeded his authority under G. L. c. 71, §42, by ordering the reinstatement of a teacher who had been terminated by the school committee based on a violation of the town's sexual harassment policy, where the arbitrator determined that the teacher's misconduct was intended as a joke, was "relatively minor and isolated" and "only nominally constituted conduct unbecoming a teacher," was "not misconduct rising to the level for which termination was contemplated by the statute," and that the "best interests of the pupils in the district" warranted the teacher's retention. Argument is tentatively scheduled for February 2014.

SJC-11537    
Commonwealth vs. Jeremy Gomes
Whether the judge erred in refusing to instruct the jury, as requested by the defendant, in essence that (a) a witness's prior viewing of a suspect in an identification procedure, without making a positive identification, reduces the reliability of the witness's later identification of the same suspect; (b) human memory is not like a video recording; and (c) witnesses who are highly confident of their identifications are not therefore necessarily reliable. Argument is tentatively scheduled for April 2014.

SJC-11538    
Elaine M. Holmes vs. Kenneth E. Holmes
Whether the general term alimony periods set forth in G. L. c. 208, §49, added by St. 2011, c. 124, §3, begin running as of the date of the divorce judgment or as of the date the divorce complaint is served, where G. L. c. 208, §48, defines "length of the marriage" as ending on the date of service and where, in the circumstances of this case, the husband was ordered to and did pay temporary alimony during the pendency of the divorce proceedings. Argument is scheduled for December 3, 2013.

SJC11542    
Commonwealth vs. Peter Pon
Whether the court should reexamine its decision in Commonwealth v. Doe, 420 Mass. 142 (1995), regarding the sealing of criminal records, in light of societal and legislative changes since that decision was issued, including the 2010 amendment of G. L. c. 276, §100C. Argument is tentatively scheduled for February 2014.

SJC-11543    
Commonwealth vs. Matthew Sheridan
Whether, as the judge ruled, the police entry into the defendant's vehicle was justified regardless whether the amount of marijuana the officers observed inside the vehicle was perceived to be more or less than one ounce, because it was contraband that they were entitled to seize; and whether the warrantless search of text messages on the defendant's cell phone was within the scope of a permissible search incident to arrest. Argument is tentatively scheduled for February 2014.

SJC-11544    
Service Employees International Union, Local 509 vs. Department of Mental Health
Whether the union had standing and a private right of action to challenge alleged violations by the employer of the Pacheco Law, G. L. c. 7, §§52-55, in the course of privatizing the services provided by certain of the union's employees. Argument is tentatively scheduled for February 2014.

SJC-11545    
Massachusetts State Automobile Dealers Ass'n & others vs. Tesla Motors, Inc. another
Whether, following the 2002 amendment to G. L. c. 93B, a vehicle manufacturer, distributor, or dealer has standing to bring suit for perceived violations of the statute against a manufacturer, distributer, or dealer with whom it is not affiliated; whether Beard Motors, Inc. v. Toyota Motor Distrib., Inc., 395 Mass. 428 (1985), and its progeny, continue to apply to c. 93B, as amended. Argument is tentatively scheduled for February 2014.

September 2013 Announcements

SJC-11487   
Commonwealth vs. Marcus Mitchell

For purposes of the Massachusetts wiretap statute, G. L. c. 272, §99 B 4, which excludes from the definition of "interception" certain recordings and transmissions made by police "in the course of an investigation of a designated offense," whether the content of the recorded call must itself be related to the designated offense being investigated.  The case is tentatively scheduled for argument in Winter 2013-2014.

SJC-11520    
Michael Moe & others vs. Chair of the Sex Offender Registry Board

Whether a July, 2013 amendment to the Sex Offender Registry Law -- which requires that sex offender registry information of level two sex offenders now be published on the Internet -- was intended to apply, and can constitutionally be applied, to persons classified as level two offenders before the effective date of the amendment; and whether the publication on the Internet of level two offender information would violate Federal and State due process, ex post facto, and double jeopardy protections.  The case will be argued in December 2013.

SJC-11482
Commonwealth v. Shabazz Augustine
Whether there is a warrant requirement for cell phone records collected and held by the phone company, namely historic cell site location information, sought by police to establish a person's location at various times. Argument is scheduled on October 10, 2013.

 

Click here to see Amicus Announcements from September 2012 to August 2013.