August 2013 Announcements

Amicus announcements for cases tentatively scheduled for Winter 2013 - 2014.

SJC-11490      
U.S. Bank National Assoc., as trustee for Bear Sterns Asset-Backed Securities Trust 2004-AC4 vs. John Schumacher & another

Whether a failure strictly to comply with the notice provisions of G. L. c. 244, §35A, renders an extrajudicial foreclosure sale void, voidable, or otherwise affects its validity; whether the notice in this case, which listed the name and address of the mortgage servicer, and which identified as the "current mortgagee" an entity to whom the mortgage eventually was - but had not yet been - assigned, satisfied the statutory requirement that the notice provide "the name and address of the mortgagee, or anyone holding thereunder."

SJC-11492      
Marcia D. Bellermann & others vs. Fitchburg Gas & Electric Light Co.

Whether the judge erred in denying the plaintiffs' motion for class certification, pursuant to G. L. c. 93A, §9 (2), and Mass. R. Civ. P. 23, in a case involving a mass power outage, where it is alleged that numerous residential and business customers of the defendant suffered damages as a result of the defendant's inadequate preparation for and response to an ice storm in December, 2008.

SJC-11493      
Ronald Garney vs. Massachusetts Teachers' Retirement System

Whether a public school teacher forfeits his pension under G. L. c. 32, §15 (4), when he is convicted of possessing child pornography, where he does not use any of the school's resources or his position as a teacher to facilitate the crime, and where none of his students was depicted in the pornographic material; what significance, if any, the teacher's status as a mandated reporter under G. L. c. 119, § 21, has with respect to forfeiture.

SJC-11494      
Commonwealth vs. Edmund LaChance, Jr.

Where counsel in a criminal case, without any tactical reason, fails to object to an improper closure of the courtroom, whether prejudice must be presumed for purposes of the second prong of the Saferian standard.

July 2013 Announcements

SJC-11475
Commonwealth vs. Paul Stewart
 
Where a defendant has been convicted of a drug offense under G. L. c. 94C, §32A (c), for which he is sentenced as a repeat offender under c. 94C, §32A (d), and is also convicted as an habitual offender pursuant to G. L. c. 279, §25, whether he can properly be sentenced as both a repeat offender and as an habitual offender; if so, whether the repeat offender sentence under §32A (d) is the "maximum penalty" for purposes of determining the sentence under c. 279, §25.  (This case is paired for argument with SJC-11472, Commonwealth vs. Tari Richardson.) Scheduled for Fall 2013

SJC-11472
Commonwealth vs. Tari Richardson   
  
Whether a defendant who has been convicted of a second or subsequent violation of unlawful possession of a firearm can be sentenced both as a repeat offender under G. L. c. 269, §10 (d), and as an armed career criminal under G. L. c. 269, §10G; if not, whether the determination of which enhancement provision applies is a decision properly left to the discretion of the sentencing judge.  (This case is paired for argument with SJC-11475, Commonwealth vs. Paul Stewart.)  Scheduled for Fall 2013.

SJC-11473
J.M. Hollister, LLC vs. Architectural Access Board   

Whether the trial court erred in upholding the Architectural Access Board's determination that each of the three doors at the front of the plaintiff's store was a separate "entrance" within the meaning of 521 Code Mass. Regs. §5.1, and, as such, had to be separately accessible by physically disabled persons.   Scheduled for Winter 2013-2014.

SJC-11461
Commonwealth vs. Edgar Selavka

Whether the addition of GPS monitoring as a condition of the defendant's probation, approximately one year after the defendant was sentenced, in order to correct an oversight in the original sentencing, constituted an improper revision of the sentence and violated double jeopardy principles; whether G. L. c. 265, §47, by requiring GPS monitoring to be imposed as a condition of probation for every defendant convicted of a sex offense, with no opportunity for a defendant to demonstrate that the requirement serves no legitimate purpose as to him, is unconstitutional.  (This case is paired for argument with SJC-11483, Commonwealth vs. Jose Guzman.)  Scheduled for Winter 2013-2014.

SJC-11483
Commonwealth vs. Jose Guzman   

Whether the sentencing judge erred by not imposing GPS monitoring, pursuant to G. L. c. 265, §47, as a condition of the defendant's probation; whether the judge erred in denying the Commonwealth's subsequent request to correct the sentence, ruling that she had authority in the circumstances to decline to impose GPS monitoring; whether mandatory GPS monitoring under the statute would constitute an unreasonable search and seizure and violate due process principles.  (This case is paired for argument with SJC-11461, Commonwealth vs. Edgar Selavka.) Scheduled for Winter 2013-2014.

SJC-11474
Brian Wyman & others, trustees vs. Ayer Properties, LLC

Whether the economic loss doctrine bars recovery for property damage to the common areas and residential units of a condominium resulting from negligent design and construction of the common areas; whether the condominium structure constitutes a single integrated product for purposes of the economic loss doctrine.  To the extent that recovery is not barred, whether the judge properly awarded the cost of repair or replacement of each component as of the time the damage occurred, rather than the actual repair or replacement costs.  Scheduled for Winter 2013-2014.

SJC-11476
Milton C. Weiler, Jr. vs. PortfolioScope, Inc. & others

Whether the judge properly concluded that an agreement providing that the plaintiff would be paid "[f]ive percent of the net proceeds (or net recovery) to the Company in connection with [certain identified] claims by the Company" and that "[t]he term net proceeds or net recovery . . . shall mean gross proceeds less legal fees of the Company's counsel" gave the plaintiff priority over any other creditor except counsel.  Whether one or more of the defendants breached the covenant of good faith and fair dealing by paying an individual defendant out of the settlement proceeds before paying the plaintiff, by misleading, hindering, and delaying the plaintiff from taking steps to secure payment, or by failing to inform the plaintiff of one or more secured creditors with a prior interest in the settlement proceeds. Scheduled for Winter 2013-2014.

SJC-11480
Commonwealth vs. John Rex

Whether indictments charging the defendant with possession of child pornography were properly dismissed on the ground that the photographs in question did not depict a "lewd exhibition of the unclothed genitals, pubic area, buttocks or, if such person is female, a fully or partially developed breast of the child" within the meaning of G. L. c. 272, §29C (vii), where the photographs were photocopied and cropped from various nonpornographic sources (i.e., National Geographic, a sociology textbook, and a naturist publication) and were stored with sexual and other material in the defendant's possession.  Argument is scheduled for Winter 2013-2014.

SJC-11478    
William J. Bower vs. Michelle A. Bournay-Bower

Whether a Probate and Family Court judge exceeded her authority by appointing a parenting coordinator, by requiring the parenting coordinator to "hear all disputes between the parties regarding custody and visitation, in the first instance, before such matters are brought before the court," by giving the parenting coordinator "BINDING AUTHORITY to issue rulings concerning disputes brought to her," and by requiring that the parties "comply with her decisions as if they were court orders, UNLESS either party, dissatisfied, comes before the court before the decision is to take effect, and obtains a contrary order."  (Emphases in original).  Argument is scheduled for Winter 2013-2014.

SJC-11481    
Commonwealth vs. Matthew W. Overmyer

Whether a police officer was justified in questioning the defendant about possible marijuana in his vehicle based on the officer's perception of a strong odor of fresh (unburned) marijuana in the vicinity of the vehicle; whether the officer had probable cause to search a backpack in the vehicle after the defendant, in response to the officer's questioning, produced a bag that may have contained more than an ounce of marijuana. Argument is scheduled for Winter 2013-2014.

SJC-11477         
Auto Flat Car Crushers, Inc. vs. Hanover Ins. Co.

Whether an insured is entitled to recover multiple damages under G. L. c. 93A, §11, based on an insurer's breach of its duty to defend, where, after the insured commences the litigation and before the adjudication of the insured's c. 93A, §11 claim, the insurer fully reimburses the insured's losses, with interest, such that, allegedly, there are no longer any "actual damages."  Argument is scheduled for Winter 2013-2014.

SJC-11439      
Kenneth D. May & others vs. Suntrust Mortgage, Inc.

Certified question from the Bankruptcy Court:   "May an obligor who grants a mortgage in a consumer credit transaction rescind the transaction under the Massachusetts Consumer Credit Cost Disclosure Act [G. L. c. 140D, s. 1, et seq.] defensively by way of common law recoupment after the expiration of the four year statute of limitations set forth in [c. 140D, s. 10 (f)]?"  Argument is scheduled for Fall 2013.

SJC-11456      
Commonwealth vs. Noel Pagan

Whether the 2012 amendment to G. L. c. 94C, §2J, that reduced the so-called "school zone" from 1,000 feet to 300 feet applies retroactively to offenses committed before the effective date of the amendment, for which charges were pending at the time of the amendment.  (Paired for argument with SJC-11457, Commonwealth vs. Zachary Bradley, and  scheduled to be heard in October.)

SJC-11457      
Commonwealth vs. Zachary Bradley
 
Whether the 2012 amendment to G. L. c. 94C, §32J, that reduced the so-called "school zone" from 1,000 feet to 300 feet applies retroactively to offenses committed before the effective date of the amendment, for which charges were pending at the time of the amendment.  (Paired for argument with SJC-11456, Commonwealth vs. Noel Pagan, and scheduled to be heard in October.)

SJC-11460      
Jane T. Polay & another vs. Joseph S. McMahon

Whether the plaintiffs' complaint stated a claim for invasion of privacy under G. L. c. 214, §1B, where it alleged that the defendant, using video recording equipment located on his property, continuously recorded images of the plaintiffs, their home, their property, and the street in front of their home; and, on the plaintiffs' claims for abuse of process and malicious prosecution, whether the defendant, having prevailed on a special motion to dismiss under G. L. c. 231, §59H, was entitled to attorney's fees and costs, where he did not incur the fees and costs personally but instead they were borne by the insurer of his house.  Argument is scheduled for Fall 2013.

SJC-11469          
Commonwealth vs. Jason L. LeClaire

Whether a witness validly asserted his privilege against self‑incrimination under the Fifth Amendment and art. 12 of the Massachusetts Declaration of Rights, where his allegedly incriminating testimony concerned a crime that is rarely prosecuted (specifically, the witness, called by the prosecution, had been asked on cross-examination whether he had consumed narcotics, and how much he had consumed, on the night of the events in question.)  Argument is scheduled for Fall 2013.

SJC-11462      
Commonwealth vs. Geordano Rodriguez

Whether the judge erred in denying the defendant's motion to withdraw his plea on certain drug offenses because of alleged misconduct at the Hinton Laboratory where the drugs were tested.  (The following cases are grouped for argument:  SJC-11463, Commonwealth vs. Adam Davila; SJC-11464, Commonwealth vs. Corey Bjork; SJC-11465, Commonwealth vs. Rakim Scott; SJC-11466, Commonwealth vs. Rene Torres; SJC-11470, Commonwealth vs. Reginald Gardner; SJC-11462, Commonwealth vs. Geordano Rodriguez.  Counsel should consult the briefs on file to learn the factual differences.)  Argument is scheduled for October 10, 2013.

SJC-11463      
Commonwealth vs. Adam Davila

Whether the judge erred in granting the defendant's motion to withdraw his plea on certain drug offenses because of alleged misconduct at the Hinton Laboratory where the drugs were tested.  (The following cases are grouped for argument:  SJC-11463, Commonwealth vs. Adam Davila; SJC-11464, Commonwealth vs. Corey Bjork; SJC-11465, Commonwealth vs. Rakim Scott; SJC-11466, Commonwealth vs. Rene Torres; SJC-11470, Commonwealth vs. Reginald Gardner; SJC-11462, Commonwealth vs. Geordano Rodriguez. Counsel should consult the briefs on file to learn the factual differences.) Argument is scheduled for October 10, 2013.

SJC-11464      
Commonwealth vs. Corey Bjork

Whether the judge erred in granting the defendant's motion to withdraw his plea on certain drug offenses because of alleged misconduct at the Hinton Laboratory where the drugs were tested.  (The following cases are grouped for argument: SJC-11463, Commonwealth vs. Adam Davila; SJC-11464, Commonwealth vs. Corey Bjork; SJC-11465, Commonwealth vs. Rakim Scott; SJC-11466, Commonwealth vs. Rene Torres; SJC-11470, Commonwealth vs. Reginald Gardner; SJC-11462, Commonwealth vs. Geordano Rodriguez.  Counsel should consult the briefs on file cases to learn the factual differences.)  Argument is scheduled for October 10, 2013.

SJC-11465      
Commonwealth vs. Rakim Scott

Whether the judge erred in granting the defendant's motion to withdraw his plea on a drug offense because of alleged misconduct at the Hinton Laboratory where the drugs were tested.  (The following cases are grouped for argument:  SJC-11463, Commonwealth vs. Adam Davila; SJC-11464, Commonwealth vs. Corey Bjork; SJC-11465, Commonwealth vs. Rakim Scott; SJC-11466, Commonwealth vs. Rene Torres; SJC-11470, Commonwealth vs. Reginald Gardner; SJC-11462, Commonwealth vs. Geordano Rodriguez.  Counsel should consult the briefs on file to learn the factual differences.)  Argument is scheduled for October 10, 2013.

SJC-11466      
Commonwealth vs. Rene Torres

Whether the judge erred in granting the defendant's motion to withdraw his plea on a drug offense because of alleged misconduct at the Hinton Laboratory where the drugs were tested.  (The following cases are grouped for argument:   SJC-11463, Commonwealth vs. Adam Davila; SJC-11464, Commonwealth vs. Corey Bjork; SJC-11465, Commonwealth vs. Rakim Scott; SJC-11466, Commonwealth vs. Rene Torres; SJC-11470, Commonwealth vs. Reginald Gardner; SJC-11462, Commonwealth vs. Geordano Rodriguez.  Counsel should consult the briefs on file to learn the factual differences.)  Argument is scheduled for October 10, 2013.

SJC-11470      
Commonwealth vs. Reginald Gardner

Whether the judge erred in granting the defendant's motion to dismiss certain drug charges because of alleged misconduct at the Hinton Laboratory where the drugs were tested.  (The following cases are grouped for argument:  SJC-11463, Commonwealth vs. Adam Davila; SJC-11464, Commonwealth vs. Corey Bjork; SJC-11465, Commonwealth vs. Rakim Scott; SJC-11466, Commonwealth vs. Rene Torres; SJC-11470, Commonwealth vs. Reginald Gardner; SJC-11462, Commonwealth vs. Geordano Rodriguez.  Counsel should consult the briefs on file to learn the factual differences.)  Argument is scheduled for October 10, 2013. 

June 2013 Announcements

SJC-11452
Care and Protection of J.L

Where a minor in the custody of the Department of Children and Families has petitioned for visitation with his younger siblings, who are in the custody of legal guardians other than the biological parents, whether such visitation was properly granted over the objection of the siblings and their guardians and without a showing of harm to the siblings if visitation is not allowed; whether the guardians' decision not to allow the petitioner to visit with the siblings is entitled to the same presumption of validity given to similar decisions by parents. See Blixt v. Blixt, 437 Mass. 649 (2002).  Argument is scheduled for Sept. 4, 2013.

SJC-11451
Commonwealth vs. Jose Arce

Whether the statutory framework for community parole supervision for life pursuant to G. L c. 6, §178H, and G.L. c. 127, §133D, violates art. 30 of the Massachusetts Declaration of Rights (separation of powers provisions) and is therefore unconstitutional. This case has been paired for argument with SJC - 11316, Commonwealth v. Casey L. Cole.  Argument is scheduled for Fall 2013.

SJC-11450                                                                                                                   
Matthew Ferreira vs. Chrysler Group LLC & another

Whether, under G.L. c. 93B, §8 (a), the manufacturer of an allegedly defective motor vehicle must, on written notification by the dealer, assume the defense of a negligence action brought by a consumer in the absence of a final determination that the manufacturer was negligent; or whether the manufacturer's statutory obligation to defend is conditioned on a final determination that "the basis for liability is .solely the result of such negligence by manufacturer  and not in any way the result of any fault or neglect on the part of the motor vehicle dealer."  Argument is scheduled for Fall 2013.

SJC-11449                                                           
K.G.M Custom House, Inc. vs. Stephen J. Prosky & others

Where a purchaser under a real estate purchase and sale agreement files a complaint against the sellers before the time for performance has passed, alleging an anticipatory repudiation by the sellers, whether the plaintiff's relief should be limited to specific performance, or whether the purchaser is entitled to money damages as a remedy where the time for performance passes while the action is pending.  Argument is scheduled for Fall 2013.

SJC-11446
Commonwealth vs. Wayne C. Tassone

Whether the defendant suffered a violation of his Sixth Amendment confrontation right when a chemist from the State police crime laboratory was permitted to testify at trial and compare the results of an analysis performed by the State lab of DNA taken from the defendant with an analysis performed by a commercial testing facility of DNA found at the crime scene.  See Williams v. Illinois, 132 S.Ct. 2221 (2012).  Argument is scheduled for Fall 2013.

SJC-11440                                                                                                              
Commonwealth vs. Korey Jordan

When a single justice of the Supreme Judicial Court allows an application for leave to pursue an interlocutory appeal pursuant to Mass. R. Crim. P. 15 (a) (2), but no notice of appeal is actually filed in the trial court, whether the appellate court has jurisdiction to hear the appeal; when a single justice allows such an application without specifically addressing procedural deficiencies such as the fact that the application (or the notice of appeal) is late, or that there is no notice of appeal, whether the single justice's ruling effectively cures the procedural deficiencies, such that the appellate court considering the appeal will consider its substantive merits and need not examine its procedural propriety.  Argument is scheduled for Fall 2013.

SJC-11438
Commonwealth vs. Nancy Carmel

For purposes of G. L. c. 209A, whether the residents of a group living dwelling, in this case a facility regulated by the Department of Developmental Services, are "household member[s]" within the meaning of the statute.  Argument is scheduled for Fall 2013.

SJC-11436
Commonwealth vs. Anthony Craan

Where a police officer smells an odor of marijuana coming from a motor vehicle but does not otherwise have a basis to believe that any individual inside the motor vehicle possesses more than one ounce of marijuana, whether the officer may issue an exit order and search the motor vehicle on the basis that a Federal crime is being committed, where Federal law prohibits the possession of any amount of marijuana.  Argument is scheduled for Fall 2013.

SJC-11429
Commonwealth vs. Ryan Dalton

Where a defendant has been convicted of a sex offense involving a child - in this case, statutory rape - and given a sentence of probation, whether a judge has discretion under the third sentence of G. L. c. 6, §178E (f), to relieve the defendant of the obligation to register as a sex offender. Argument is scheduled for Fall 2013.

May 2013 Announcements

SJC-11454                       
Commonwealth vs. Marquise Brown
Following the Supreme Court's decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), what is the appropriate sentence or range of sentences, and what is the appropriate sentencing procedure, for a defendant who has been convicted of murder in the first degree and who was seventeen years old at the time of the offense. (The offense in this case occurred before the Miller case was decided; the trial and conviction occurred after Miller; and the defendant is awaiting sentencing.)  Argument is scheduled for September 2013.

SJC-11453
Gregory Diatchenko vs. District Attorney & others
Whether the Supreme Court's holding in Miller v. Alabama, 132 S.Ct. 2455 (2012), applies to the petitioner in this case, who as a juvenile committed murder in the first degree and was tried, convicted, and sentenced to a mandatory life term without the possibility of parole before the Miller case was decided (see Commonwealth v. Diatchenko, 387 Mass. 718 [1982]), and who remains incarcerated on that conviction and sentence; and, if Miller does apply, what is the appropriate remedy for a defendant in the petitioner's situation. Argument is scheduled for September 2013.

SJC-11434
Steven M. Glovsky vs. Roche Bros. Supermarket, Inc.
Whether the plaintiff, a candidate for public office, had a State constitutional right under article 9 of the Declaration of Rights (concerning the freedom and equality of elections) to access the defendant's property in Westwood in order to solicit signatures on his nomination papers.  Argument  is scheduled for Fall 2013.

SJC-11433
Commonwealth vs. Stephen J. Morse
Whether a defendant can be found guilty of violating G. L. c. 268, §13B, based on his allegedly false denials in response to police questioning about possible criminal activity; whether the statute violates the defendant's rights under article 12 of the Declaration of Rights (" No subject shall be . . . compelled to accuse, or furnish evidence against himself . . . ") or is void for vagueness.  Argument  is scheduled for Fall 2013.

SJC-11432                                                       
New England Forestry Foundation, Inc. vs. Board of Assessors of Hawley
Whether certain forest land owned by the plaintiff, a land conservation organization,  qualifies for charitable tax exemption pursuant to G. L. c. 59, §5, Clause Third; whether the Appellate Tax Board erred in ruling, among other things, that the plaintiff's purposes and activities do "not fit into the established realm of traditional charities according to Massachusetts case law," that the property was not sufficiently open to and accessible by the public to qualify for tax exemption, and that the plaintiff "failed to demonstrate a sufficiently active appropriation of the subject property to achieve a public benefit."   Argument  is scheduled for Fall 2013.

SJC-11424
A.J Properties, LLC. vs. Stanley Black & Decker Inc.
"Does the rule of Quaranto v. Silverman, 345 Mass. 423, 426-27 (1963), that `the assignment of a debt carries with it every remedy or security that is incidental to the subject matter of the assignment and could have been used or made available to the assignor,' extend to a situation where a mortgage and a surety agreement secured an obligation, and both the mortgagor and the surety breached that obligation prior to a written assignment of the mortgage[;] does the assignee, by operation of law, acquire the right against the surety's receiver for the surety's breach of its obligation?"  (Certified question from U.S. District Court for Massachusetts).  Argument is scheduled for Fall 2013.

SJC-11422
Estate of Steven Gavin vs. Tewskbury State Hospital
Whether a presentment letter sent pursuant to the tort claims act, G. L. c. 258, §4, which identifies the claimant as "the estate of [the decedent] and his individual children," satisfied the requirements of the statute, where at the time the letter was sent no temporary or permanent executor or administrator had yet been appointed for the decedent's estate; and whether a wrongful death action based on that presentment letter, brought before an executor or administrator had been appointed, was properly dismissed.   Argument  is scheduled for Fall 2013.

SJC-11421
Commonwealth vs. Bernard LaBroad
In a sexual assault case, where the defendant seeks production of records from the complainant's psychologist, to whom the complainant is alleged to have described the offending conduct, whether the defendant's initial showing was sufficient to satisfy the first stage of the protocol established by Commonwealth v. Dwyer, 448 Mass. 122 (2006).   Argument  is scheduled for Fall 2013.

SJC-11420
Sorenti Brothers  Inc., vs. Commonwealth
Whether the property owner suffered a compensable injury for purposes of G. L. c. 81, §7C, when the Commonwealth constructed the Sagamore "flyover project," by which it altered the means of access to the property.   Argument  is scheduled for Fall 2013.

SJC-11419                                            
Commonwealth vs. Timothy Hearns
Whether the averments contained in an affidavit in support of a wiretap warrant, regarding the particular facts of the homicide in this case and the structure and activity of Boston street gangs in general, were sufficient to establish the requisite nexus to "organized crime."  See Commonwealth v. Tavares, 459 Mass. 289 (2011).   Argument is scheduled for Fall 2013.

SJC-11417
Michelle Wilkins vs. City of Haverhill
Whether a parent of a public school student who attends a parent-teacher conference at the school is engaged in an "educational" use of the property for purposes of the recreational use statute, G. L. c. 21, §17C; whether the parent in such a situation is entitled to the same duty of care that is owed to the student.   Argument is scheduled for Fall 2013.

SJC-11416
Commonwealth vs. Tyrone Sealy
In a sexual assault case, whether production of records in the possession of a third party, which are claimed to be covered by the complaining witness's attorney-client privilege, should be examined in accordance with the protocol established by Commonwealth v. Dwyer, 448 Mass. 122 (2006).   Argument is scheduled for Fall 2013.

SJC-11414                                                                                                                    
Commonwealth vs. John Parrillo
In a case where community parole supervision for life is not statutorily required, whether G. L. c. 265, §45, provides a basis independent of G. L. c. 275, §18, for imposing community parole supervision for life and, if so, what procedural steps are required.  Argument is scheduled for Fall 2013.

SJC-11413
Somerville Retirement Board vs. John Buonomo
Where a public employee has held office in two separate governmental systems - as an alderman in the city of Somerville and subsequently as the register of probate in Middlesex County - whether forfeiture of his retirement benefits from the Somerville system is warranted under G.L. c.32, §§15(3) and 15(4), when his convictions stem from misconduct that occurred in his position as Middlesex register; and whether the analysis of this issue depends on whether the Somerville retirement system receives contributions from the Commonwealth under G. L.c.32, §3(8)(c).  Argument is scheduled for Fall 2013.

SJC-11412
Commonwealth vs. Donna Shea
Where a defendant has been charged pursuant to G. L. c. 209A, §7, with violating an abuse protection order issued in another jurisdiction, whether the law of the Commonwealth or the law of the foreign jurisdiction applies to the question whether the abuse protection order was violated.  Argument is scheduled for Fall 2013.

SJC-11402
Joseph Randall & another vs. Marion Haddad & others
Whether an equitable exception exists from the provisions of G. L. c. 32, §19, that prohibit execution on a judgment by trustee process against the Massachusetts Retirement Board, when the money in question, which purchased a buy-back of state service, did not belong to the state employee and was deposited by her in the pension account in violation of an explicit court order.  Argument is scheduled for Fall 2013.

SJC-11401
Maryann Doherty vs. Planning Board of Scituate
Whether a judge of the Land Court correctly upheld a planning board's denial of a special permit for the construction of single family homes on pilings on two lots within the municipal flood plain and watershed protection overlay district established in 1972; whether the judge correctly ruled that the board properly considered Federal Emergency Management standards, which postdated the map of the district and the applicable by-law, to determine that the lots in question were "subject to flooding."  Argument is scheduled for Fall 2013.

SJC-11398
Commonwealth vs. Rodrick Taylor
The circumstances of this case, in which there were lengthy delays in the Commonwealth's production of discovery materials, raise important issues regarding the application of Mass. R. Crim. P 36.  Argument is scheduled for Fall 2013.

SJC-11395                                                                          
William Sheehan vs. David B. Weaver & another
In this personal injury action brought by a residential tenant against his landlord, the issue presented is the scope of G. L. c. 143, §51; whether the statute renders landlords strictly liable for any violation of the State Building Code; whether the decision in McAllister v. Boston Housing Authority, 429 Mass. 300, 304 n. 5 (1999) should be reconsidered in light of changes to the statute; whether the mixed residential-commercial structure at issue is a building within the meaning of the statute.  Argument is scheduled for Fall 2013.

SJC-11394                                                                                    
Sean Townsend, individually and as Administrator vs. Dwight A. Ware
Whether the defendant attorney owed a duty to the plaintiff, a non-client, in drafting a will in 2006 that omitted the plaintiff, where the non-client was an actual intended beneficiary of the testator's valid 2000 will.  Argument is scheduled for Fall 2013.

SJC-11393                                                                                                   
Michal Bakwin vs. Robert Mardirosian & others
The issue presented is the availability of money damages against a fraudulent transferee pursuant to provisions of the Uniform Fraudulent Transfer Act,  G. L. c. 109A, §8, 9 & 11.  Argument is scheduled for Fall 2013.

SJC-11392
Commonwealth vs. Elan Dejesus
At issue is the advice a criminal defense attorney must give to a noncitizen defendant who is considering pleading guilty to offenses that are likely to result in deportation: whether upon pleading guilty, either the defendant would be "eligible for deportation," or that "deportation was presumptively mandatory" or automatic, in the circumstances.  See Padilla v. Kentucky, 130 S Ct. 1473 (2010). Argument is scheduled for Fall 2013.

SJC-11391                                                   
Carolyn Zaleski vs. Stephen Zaleski
This divorce case involves consideration of how prior case law concerning alimony applies under the provisions of the Alimony Reform Act, St. 2011, c. 124, effective March 1, 2012, see G. L. c. 208, §§34, 48-55, particularly with respect to an award of rehabilitative alimony.  Argument is scheduled for Fall 2013.

SJC-11390
The Woodward School For Girls, Inc. vs. City of Quincy, trustee, & another
The issue presented is whether a trustee may be found to have breached its fiduciary duties to the income beneficiary of a trust by failing to follow the investment recommendations of an investment advisor, particularly where the trustee invests in fixed income funds and instruments . See the Uniform Prudent Investor Act, G. L. c. 203C.   Argument is scheduled for Fall 2013.

SJC-11354 
Commonwealth vs. Glen Alebord
This case, paired for argument with Commonwealth v. Morganti, SJC-11281, raises the issue of the retroactive application of Presley v. Georgia, 130 S. Ct. 721, 725 (2010) and Commonwealth v. Cohen (No. 1), 456 Mass. 94, 107-108 (2010), applying the Sixth Amendment right to a public trial to jury selection.  Argument is scheduled for Fall 2013.

April 2013 Announcements

SJC-11408, -11409, -11410
Commonwealth vs. Shubar Charles (& two companion cases)
These cases present issues with respect to the nature and extent of the authority of Special Magistrates and Superior Court judges appointed pursuant to an Order of Assignment by the Chief Justice of the Superior Court, see Mass. R. Crim. P. 47, "to preside over criminal proceedings in connection with cases relating to the William A. Hinton State Laboratory Institute in Jamaica Plain." The petitions arise out of procedures adopted by the Superior Court for handling post conviction matters arising out of alleged misconduct connected to the William A. Hinton State Laboratory Institute.  The reported questions concern the authority of a special magistrate to stay execution of a defendant's sentence pending disposition of a motion for a new trial; whether a special magistrate has authority to reconsider and allow a motion to stay execution of a criminal defendant's sentence where a Superior Court judge previously denied a motion to stay; and whether the court should consider the question of the authority of a special master to conduct plea colloquies, where neither party can be required to submit to a plea colloquy conducted by a special magistrate.  Argument is scheduled for May 9, 2013.

SJC-11400                                                                
Commonwealth vs. Kempess Sylvain
The issue presented, among others, is whether Massachusetts will continue to apply retroactively the United States Supreme Court's decision in Padilla vs. Kentucky, 130 S.Ct. 1473 (2010), in light of the recent decision in Chaidez vs. United States, 586 U. S.___, 2013 U.S. LEXIS 1613 (February 20, 2013). See Commonwealth v. Clarke, 460 Mass. 30, 34 n.7 (2011).  Argument is scheduled for Fall 2013.

SJC-11369
Commonwealth vs. Thomas Galvin
Whether the provisions of G.L. c. 94C, §32A(d), as amended by St. 2012, c. 194, §14, apply retroactively to a defendant whose offense occurred before the effective date of the act (August 2, 2012), but who was convicted and sentenced after the effective date.   Argument is scheduled for May 7, 2013.

March 2013 Announcements

SJC-11383                                                                                                
John P. Harrington vs. William M. Costello & another
In this defamation action, the issue presented is whether the statute of limitations was tolled by the plaintiff's asserted inability, reasonably and in good faith, to discover the identity of the persons who had allegedly fabricated and published the defamatory statement.    Argument is scheduled for Fall 2013.

SJC-11381
Tracy MacDonald vs. Kevin Caruso
Whether a Probate Court judge in 2011 correctly denied a motion to vacate an abuse prevention order issued in 1999 and made permanent in 2001; whether the clear and convincing standard for modification, termination or vacation of domestic abuse prevention orders set forth in Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 781 (2005), should apply.  Argument is scheduled for Fall 2013.

SJC-11380                                                                                                                
Commonwealth vs. Carl Sepheus
Whether, at the bench trial of an indictment, the evidence of intent to distribute cocaine was sufficient to support the defendant's conviction.  Argument is scheduled for Fall 2013.

SJC-11378
Commonwealth vs.  Michael D. Buswell
At the trial of an indictment for enticement of a child under sixteen, G. L. c. 265,§26C, in which the defense was entrapment, whether there was sufficient evidence of predisposition; whether there was error in the introduction of certain evidence seized from the defendant's computer pursuant to a warrant; whether a second search of the defendant's computer, conducted after a hearing on a motion to suppress and without a warrant, that resulted in the seizure of sexually explicit conversations that the defendant engaged in other than with the police officer posing as a minor, was unlawful, and whether that evidence should have been excluded.   Argument is scheduled for Fall 2013.

SJC-11374
Lightlab Imaging, Inc. vs. Axsun Technologies, Inc., & another
In this action involving breach of contract, trade secret, and tortious interference claims arising from a corporate acquisition, whether the trial judge correctly excluded expert testimony on future lost profits on the grounds that the methodology failed Daubert/Lanigan and was speculative; whether the judge correctly ruled that permanent injunctions may protect only specific trade secrets a defendant had already used.  Argument is scheduled for Fall 2013.

SJC-11373                                                                         
Commonwealth vs. Heather M. Ducan
Whether the emergency exception to the warrant requirement extends to the protection of animals.  Argument is scheduled for Fall 2013.

SJC-11364
Commonwealth vs. Kevin B. Hernon
In circumstances in which the defendant was cited for operating a motor vehicle with a suspended license on February 22, 2012, and the citation was filed in the District Court on March 2, 2012, seven business days later, whether the criminal complaint that issued must be dismissed for failure to comply with the requirement of G. L. c. 90C, §2 that the citation is to be filed "not later than the sixth business day after the issuance of the citation."  Argument is scheduled for Fall 2013.

SJC-11353                                                                 
Commonwealth vs. Michael Robertson
The justices are soliciting amicus briefs on the interpretation of G. L. c. 272, §105, and inter alia, the meaning of the phrase "partially nude," as used in that statute.  Argument is scheduled for Fall 2013.

SJC-11348
Commonwealth vs. Stanley Donald
The defendant filed a motion pursuant to G. L. c. 278A, for access to forensic and scientific analysis of biological evidence utilizing newer and more powerful DNA tests than were available at the time of the defendant's original trial.   A Superior Court judge denied the motion, ruling that the evidence against the defendant (excluding DNA evidence) was "overwhelming."   The issue presented is how the standard enunciated in the new statute may differ from new trial motion practice under Mass. R. Crim. P. 30. Argument is scheduled for Fall 2013.

SJC-11333
Selmark Associates Inc., & another vs. Evan Ehrilch
In circumstances in which the plaintiff manufacturer-majority stockholder was held liable for breach of fiduciary duty for the wrongful termination of the defendant employee-at-will-minority stockholder, did the trial judge correctly conclude that the defendant could be held liable for breach of fiduciary duty for accepting employment in competition with the plaintiff after his termination. Argument is scheduled for Fall 2013.

SJC-11325                                 
Clifford J. Martin vs. Simmons Properties, LLC
In this Land Court case involving a vacant lot of registered land, with no frontage on a public way but accessible by rights of way within the subdivision described "as shown" on a specific Land Court plan, the issue presented is whether, in a claim by the easement holder that his full use of the travel easement was obstructed, changes could be made to the location or dimensions of the easement so long as the easement's utility was not lessened, or whether all encroachments on the right of way must be removed. See Restatement (Third) of Property (Servitudes) §1.2 (2000); M.P.M Builders, LLC v. Dwyer, 442 Mass. 87 (2004).  Argument is scheduled for Fall 2013.

SJC-11316
Commonwealth vs. Casey L. Cole
Whether the statutory scheme of lifetime community parole pursuant to G. L. c. 6,§178H, and G. L. c. 127,§133D, unconstitutionally implicates the separation of powers doctrine.  Argument is scheduled for Fall 2013.

SJC-11315
Commonwealth vs. Joseph Canty
This case raises the issue of the propriety of police officers' testimony regarding impairment at the trial of a charge of operating a motor vehicle while under the influence of intoxicating liquor. Argument is scheduled for May 2013.

SJC-11296                                                                             
Commonwealth vs. Edward J. Denehy
The issue presented, among others, is whether a District Court judge's order of restitution in a criminal case was lawful under Southern Union Co. v. United States, 132 S.Ct. 2344 (2012).  Argument is scheduled for Fall 2013.

February 2013 Announcements

SJC-11358
Commonwealth vs.  Leon Gelfgatt
In this reported case in which the defendant was charged with forgery, uttering and attempt to commit a crime, the issues are the lawfulness of compelling the defendant to decrypt or provide an encryption key for information contained on a lawfully seized computer; whether compelling the provision of such information violates a defendant's privilege against self-incrimination.  Argument is scheduled for Spring 2013.

SJC-11357
Estate of Stephanie Moulton vs. Nicholas Puopolo & other
s
The issue presented in the context of a wrongful death action against the directors of a non-profit corporation that was the employer of the decedent is whether the directors may be employers for the purposes of the exclusivity provision of the Workers Compensation Act, G. L. c. 152, §24, or whether the directors may be subject to suit in circumstances in which the employer would not be. Argument is scheduled for Spring 2013.

SJC-11356
Jane B. McInnes vs. LPL Financial, LLC & another
Whether the decision in Hannon v. Original Gunite Aquatech Pools, Inc., 385 Mass. 813,816 (1982), holding that "consumers need not submit to arbitration as a precondition to asserting their rights" under G. L. c. 93A, §9, remains viable under subsequent decisions of the United States Supreme Court applying federal preemption doctrine to preclude state-law policy limitations on arbitration proceedings relating to interstate commerce subject to the Federal Arbitration Act, 9 U.S.C. §§1-18. Whether the existence of an arbitration clause assertedly found in a "Master Agreement" that is lost "due to the passage of time" and that was allegedly procured by fraud, is a question of fact to be determined in the first instance by a court.  Argument is scheduled for Spring 2013.

SJC-11335
Barbara Johnson vs.  Kindred Healthcare, Inc.
SJC-11336
Salvatore Licata, Jr vs. GGNSC Malden Dexter, LLC

The issue presented is whether a person acting pursuant to a health care proxy has authority to bind the principal or the principal's estate to an arbitration agreement executed in connection with the admission of the principal to a nursing home.  Argument is scheduled for September 2013.

SJC-11332
William Pepin & another vs.  Division of Fisheries and Wildlife
This matter presents a challenge to the validity of regulations of the Division of Fisheries and Wildlife under the Massachusetts Endangered Species Act, G. L. c. 131A, namely 321 Code Mass. Regs. §§ 10.11-10.25, that require property owners, whose property has been designated "priority habitat" for a species of special concern, to record a deed restriction and conservation easement before developing and/or subdividing their property; and raises the question of what procedural protections are required when the division so designates "priority habitat."  Argument is scheduled for Fall 2013.

SJC-11331
Commonwealth vs.  Matthew Mogelinski
The issues presented are whether a defendant is "apprehended" within the meaning of G. L. c. 119, §§72 or 72A, at the time a complaint or summons issues; whether a defendant who has passed his eighteenth birthday may be indicted as a youthful offender if a delinquency complaint was pending before his eighteenth birthday.  Argument is scheduled for September 2013.

SJC-11330
Bank of America, N.A & others vs. Cerafino S. Rosa & others
Whether a defendant in a post-foreclosure summary process action may avail himself of counterclaims or nontitle affirmative defenses based on breach of warranty or violations of other statutes in circumstances in which the property in question had never been "rented or leased for dwelling purposes" in accordance with G. L. c. 237, §8A.  Argument is scheduled for Fall 2013.

SJC-11328
John Doe #205614 vs.  Sex Offender Registry Board
This case raises issues concerning classification of female sex offenders, namely the application of the regulations to female offenders and the asserted refusal of the Hearing Examiner to consider evidence relating to recidivism factors and rates for females convicted of prostitution-related offenses.  Argument is scheduled for Fall 2013.

SJC-11318
Lighthouse Masonry, Inc. vs.  Division of Administrative Law Appeals
Whether job classification opinion letters issued by the Division of Occupational Safety ("DOS," now the Division of Labor Standards) are binding and are not within the scope of review by the Division of Administrative Law Appeals in an enforcement proceeding for alleged violation of the Prevailing Wage Law, G L. c. 149, §27(b)(2).  Argument is scheduled for September 2013.

SJC-11317
Jane Doe & others vs. Acton Boxborough Regional High School District & others
This case identifies important issues of State constitutional and statutory law concerning the daily recitation of the Pledge of Allegiance.  Argument is scheduled for September 2013.

SJC-11302
Commonwealth vs. Eli Pariseau
The issue presented, among others, is what remedy, if any, should be granted for the trial judge's failure, absent extraordinary circumstances, to render a decision in a jury-waived SDP proceeding for 134 days after the 30 days mandated by Commonwealth v. Blake, 454 Mass. 267 (2009).  Argument is scheduled for September 2013.

SJC-11300
Commonwealth vs. Aaron Ramsey
Whether at a criminal trial the admission of two drug certificates and a ballistics certificate absent the testimony of the analyst or ballistician was, in the circumstances, harmless error. Argument is scheduled for Spring 2013.

SJC-11299
Anne - Marie Galliastro vs. Mortgage Electronic Registration Systems, Inc.
Whether Mortgage Electronic Registration Systems ("MERS") has standing to pursue a foreclosure in its own right as a named "mortgagee" with ability to act limited solely as a "nominee" and without any ownership interest or rights in the promissory note associated with the mortgage; whether the prospective mandate of Eaton v. Federal National Mortgage Association, 462 Mass. 569 (2012), applies to cases that were pending on appeal at the time that case was decided.  Argument is scheduled for September 2013.

SJC-11298
Commonwealth vs. Luis Ortiz
The issues presented in this criminal case are whether a stipulation that the substance involved was cocaine was sufficient where it was introduced solely by way of an instruction to the jury and where there was nothing in writing and no colloquy with the defendant regarding counsel's stipulation; and whether the evidence of distribution was sufficient.  Argument is scheduled for Spring 2013.

SJC-11297
Commonwealth vs.  A. Juvenile
The issue presented is whether a Juvenile Court judge has discretion prior to an arraignment under the authority of Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002), to allow a motion to dismiss a juvenile complaint for possession of marijuana with intent to distribute; in the circumstances, the judge dismissed the complaint upon motion for lack of probable cause immediately after arraignment.  Argument is scheduled for September 2013.

SJC-11295
Firearms Records Bureau vs.  Jay E. Simkin
The issues presented are whether the provisions of G. L. c. 140, §131, that allow the revocation of a permit to carry firearms if the holder is no longer a "suitable person," are applicable to non-residents (compare G. L. c. 140, §131F); whether, in the circumstances, reasonable grounds existed for the Firearm Records Bureau to revoke a non-resident's license.  Argument is scheduled for Spring 2013.

SJC-11294
Michael Aleo vs.  SLB Toys USA, Inc.
The issue presented, among others, is whether punitive damages based on gross negligence should be evaluated differently from punitive damages based on wilful, wanton and reckless conduct.  See BMW of North America, Inc. v. Gore, 517 U.S. 559, 575, 580, 583 (1996); State Farm Mut. Auto. Ins. Co. v. Cambell, 538 U.S. 408, 416 (2003); Dartt v. Browning-Ferris Indus., 427 Mass. 1, 18 (1998); Clifton v. MBTA, 445 Mass. 611, 623 (2005).  Argument is scheduled for Spring 2013.

SJC-11293
Luis Alicea vs. Commonwealt
h
The issue presented is whether, in a criminal negligence malpractice case, the plaintiff must prove actual innocence, in circumstances in which he pleaded guilty in the criminal case and now argues that his plea counsel's negligence resulted in an unlawful sentence.  Argument is scheduled for Spring 2013.

SJC-11290
John Soe #252997 vs. Sex Offender Registry Board
Plaintiff argues that SORB improperly classified him as a level three offender based in part on allegations in a pending criminal case. Where the hearing examiner denied plaintiff's request for a stay until the criminal charges were resolved, plaintiff argues that he had an untenable choice either to respond to the allegations before the hearing examiner, which could be used against him at a subsequent trial, or to remain silent, leaving the allegations before the hearing examiner unchallenged.   Argument is scheduled for Spring 2013.

SJC-11289
Brigade Leveraged Capital Structures Fund LTD vs. Pimco Income Strategy Fund
At issue is the interpretation of the phrase "annual basis", appearing in corporate by-laws, as applicable to the scheduling of shareholder meetings, that is, whether such meetings should be held in or within a period of twelve months or in consecutive fiscal years.  Argument is scheduled for Spring 2013.

SJC-11287
Massachusetts Teachers' Retirement System vs. Contributory Retirement Appeal Board & others
At issue is the date that interest begins running under G.L. c. 32, §4(1)(h1/2): the year the purchased service in question began, or the date the employee later joined the retirement system. Argument is scheduled for Spring 2013.

SJC-11284
N.E. Physical Therapy Plus, Inc. vs.. Liberty Mutual Insurance Co.
The issue presented is whether an insurer may offer information from a database on medical charges, voluntarily reported by various insurance companies including the defendant, that reflected costs of specified services in a particular geographic region, for the purpose of demonstrating that a PIP claim was unreasonable in amount.  Argument is scheduled for Spring 2013.

SJC-11278
Commonwealth vs. Michael Gomes
The defendant appealed the denial of his motion for resentencing, supported by the Commonwealth:  whether the judge's comments during sentencing, that she was affected by the defendant's testimony ("a story that was not really believable at all"), created a substantial risk of a miscarriage of justice.  Argument is scheduled for Spring 2013.

November 2012 Announcements

SJC-11233
Richard Morse, trustee vs. Jonathan A. Kraft & other
s
The Justices request amicus submissions on what the parties represent is an unresolved point of Massachusetts trust law: whether the trustee has the power to make distributions in further trust for any beneficiary's benefit without the consent or approval of any beneficiary or court. The trust instrument in this case provides, among other things: "The Trustees shall pay to such child [of the marriage of the donor and his wife for whose benefit a trust is held] from time to time such portion or portions of the net income and principal thereof as the Disinterested Trustee shall deem desirable for the benefit of such child, accumulating and adding to principal from time to time any income not so paid" (art. III[B]); and "Whenever provision is made hereunder for payment of principal or income to a beneficiary, the same may instead be applied for his or her benefit. The Trustees may, in their discretion and without limitation as to amount, make payments or applications of income or principal to or for the benefit of a minor or any other person who, in the opinion of the Trustees, is without legal capacity, by depositing the same in a bank account in the name of such beneficiary or by making payment to a custodian for such beneficiary under a uniform gifts to minor's act or similar legislation of any jurisdiction or to such beneficiary directly, or to a legal guardian or conservator of such beneficiary" (art. VI[A]).  Argument is scheduled for March 2013.

September 2012 Announcements

SJC-11270
Commonwealth vs. Amaury Reyes
The issue presented, among others, is whether, in circumstances in which the defendant had placed his loaded firearm in the unlocked glove compartment of his locked vehicle, whether the storage statute, G. L. c. 140,§131L, is unconstitutionally vague for failing to define "secured in a locked container" with sufficient clarity.  Argument is scheduled for October 2012.

SJC-11248
Commonwealth vs. Richard H. Cumming
Whether the trial judge, in granting the defendant's Rule 30(A) motion (filed eight years after his original conviction) to correct his sentence by vacating the lifetime community parole component previously imposed, properly revised and revoked the defendant's sentences on two of the ten counts to change the sentences from six to ten years running concurrently to ten years  probation from and after the other committed sentences.  Argument is scheduled for November 2012.

SJC-11259
E.C.O. vs. Gregory James Compton
In this G. L. c. 209A proceeding, the issues presented, among others, are: whether the defendant and the plaintiff's sixteen-year-old daughter were involved in a "substantive dating relationship," having met in person twice and thereafter communicated electronically for several weeks; whether evidence suggesting that the defendant intended to travel from England to the Boston area to meet with the plaintiff's daughter, to provide alcohol to her and to engage in consensual sexual activity was sufficient to establish "abuse" within the meaning of the statute.  Argument is scheduled for November 2012.

SJC-11277
Commonwealth vs. Cory A. Moody (and a companion case)
The issue presented is whether G. L. c. 272, §99, authorizes a Superior Court judge to issue a warrant permitting State law enforcement officers to intercept cellular telephone calls and messages.  Argument is scheduled for December 2012.

SJC-11273
Scott Caron & another vs. Horace Mann Insurance Co.
Whether the judge correctly allowed reformation of an insurance policy to strike an endorsement limiting dog-bite liability to $25,000, on the ground of mutual mistake between the homeowners and the insurer's agent, based upon the agent's and the insured's agreement on the policy's overall coverage limits of $500,000.   Argument is scheduled for December 2012.

SJC-11272                                                          
Peter G. Cook vs. PatientEDU. LLC, & others
The issue presented is whether G. L. c. 149,§148, imposes liability for the non-payment of wages on the individual officers and managers of a Massachusetts limited liability company.  Argument is scheduled for December 2012.

SJC-11271
Susanne Drakopoulos & another vs. U.S. Bank N.A., trustee
In this case arising from the plaintiffs' refinancing of the mortgage of their home, whether securitizers and assignees of the borrowers' note and mortgage loan can be held liable under the provisions of the Massachusetts Predatory Home Loan Practices Act, G. L. c. 183C, and the Massachusetts Borrower's Interest Act, G. L. c. 183, §28C.  Argument is scheduled for December 2012.

SJC-11267
Mary E. Grady vs.. Zoning Board of Appeals of Peabody & others
Whether "substantial reliance" will render valid a variance that has not been recorded within one year of its grant; what constitutes "substantial reliance."  Argument is scheduled for December 2012.

SJC-11262
Commonwealth vs. Joseph Morris
The issue presented is whether a consciousness of guilt instruction based on the defendant's flight should have been given in circumstances in which the defendant raised a question of self defense and claimed that he retreated from the violent encounter out of fear; whether the court should take a fresh look at Commonwealth v. Toney, 385 Mass. 575, 584-585 & nn. 3-6 (1982).  Argument is scheduled for December 2012.

SJC-11260
John R. Irwin vs. Commonwealth
The issues presented are: whether the defendant is eligible to make a claim under G. L. c. 258D, the erroneous conviction statue, in circumstances in which the Appeals Court reversed his conviction on the basis that the Commonwealth had improperly referred to evidence suggesting the defendant's consciousness of guilt; whether the Commonwealth was entitled to appeal, under the doctrine of present execution, a Superior Court judge's ruling that the defendant was eligible to pursue his claim under the statute.  Argument is scheduled for December 2012.

SJC-11258
Richard L. Kalika vs. Alamo Financing LP & others
The operator of a motor vehicle, injured in an accident with a rental vehicle owned by the defendant, brought suit against the defendant for its alleged negligence in entrusting its vehicle to the rental driver. The issue presented are: whether 49 U.S.C. §30106, which abolishes vicarious liability of automobile lessors based solely on ownership of a vehicle, preempts G. L. c. 231, §85A; whether G. L. c. 231, §85A, is a "financial liability law" within the meaning of 49 U.S.C. §30106 and is therefore expressly not preempted by the Federal statute.  Argument is scheduled for December 2012.

SJC-11250
Massachusetts Community College Council vs. Massachusetts Board of Higher Education/Roxbury Community College
Whether a Superior Court judge erred in confirming an arbitration award regarding tenure at a State college where the applicable collective bargaining agreement specified that tenure decisions "shall be arbitrable but any award shall be non-binding." See G.L. c. 15A, §22, amended by St. 2008, c. 27, §72; Board of higher Educ. v. Massachusetts Teachers' Assn., NEA, 62 Mass. App. Ct. 42, 49 (2004).  Argument is scheduled for December 2012.