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 below are solicitations for amicus briefs from the Supreme Judicial Court. Amicus Announcements posted from September 2015 to August 2016 are online here. Click here to see solicitations for amicus briefs from the Massachusetts Appeals Court.

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

March 2017 Announcements 

SJC-12295 
Care and Protection of Joseph C.

1.  Whether, at a “72-hour hearing,” where the trial court is considering whether a child will remain in the custody of the Department of Children and Families pending a final hearing on the merits of a care and protection petition, the judge must comply with the certification and determination requirements of G. L. c. 119, § 29C (regarding the department’s reasonable efforts to eliminate the need for removal of the child from the home); whether the certification and determination requirements apply only at the initial, ex parte hearing or also at the 72-hour hearing.
2.  Where G. L. c. 119, § 29C, delineates certain exceptions from the “reasonable efforts” requirement, none of which applies in the circumstances of the case, whether DCF may be excused on any other basis from making reasonable efforts to eliminate the need for removal of the child from his home.

SJC-12277 
Commonwealth vs. A Juvenile

Whether, under G. L. c. 119, § 54, an offense causing serious bodily injury to a nonhuman animal qualifies as an offense that “involves the infliction . . . of serious bodily harm” for purposes of supporting a youthful offender indictment.

SJC-12282 
John Doe No. 209081 vs. Sex Offender Registry Board

Whether the person appointed to conduct a final classification hearing, pursuant to G. L. c. 6, § 178L, must inquire of the sex offender as to whether the sex offender’s purported waiver of the statutory right to counsel is knowing, intelligent and voluntary.

SJC-12281 
Omari Peterson vs. Commonwealth

Where a defendant’s criminal conviction was vacated on direct appeal on the ground that certain evidence should have been suppressed, but the appellate court did not reach his alternative argument that the knife he was convicted of possessing was not unlawful under G. L. c. 269, § 10 (b), whether he may establish preliminary eligibility under the erroneous conviction statute, G. L. c. 258D, § 1 (B) (ii), by alleging that he was innocent of the underlying crime.

February 2017 Announcements 

SJC-12246 
Timothy Deal & another vs. Commissioner of Correction

1.  Whether the Department of Correction in conducting classification hearings as part of an "individualized determination of a juvenile offender's suitability for placement in minimum security,"  Deal v. Commissioner of Correction, 475 Mass. 307, 318 (2016), must provide certain procedural protections, including, but not limited to, access to counsel, at the hearing.   
2.  Whether the department impermissibly applies discretionary classification override codes in making its classification decisions, specifically, the decision of whether a juvenile offender qualifies for placement in minimum security, in violation of G. L. c. 119, § 72B.

SJC-12276 
Sreynuon Lunn vs. Commonwealth

1.  Whether a State court in Massachusetts has the authority temporarily to hold an individual, or otherwise order or arrange for him to be held, solely on the basis of a so-called “ICE detainer,” after the criminal charges against him have been dismissed (or after he has posted bail or been ordered released on personal recognizance).
2.  Whether the detention of an individual pursuant to an ICE detainer that was issued without a prior determination of probable cause by a neutral magistrate, and without there having been an opportunity for the individual to challenge the issuance of the detainer, violates the individual’s Federal and State constitutional rights.
3.  Whether, as a matter of Federal law, a State court is required to comply with an ICE detainer; if not, in what circumstances can a court comply with the detainer voluntarily without violating the individual’s Federal and State constitutional rights.  
(Amicus briefs on or before March 10, 2017).  

SJC-12262 
Energy Express, Inc. vs. Department of Public Utilities

Where G. L. c. 164, § 94F, provides, in part, that “the [Department of Public Utilities] . . . may order [a] gas company to refund to its customers any sums refunded to said gas company . . . and may impose such restrictions, limitations, terms and conditions in such order as are considered necessary by it,” whether the department permissibly ordered Bay State Gas Company, to return a portion of a refund that it received from an interstate pipeline, which was valued at approximately $30 million, to ratepayers, but not to natural gas marketers, including Energy Express, Inc., which purportedly paid excessive rates.

SJC-12265 
Beacon Residential Management, LP vs. Kaylem Pipkin & others

Pursuant to the Federal Violence Against Women Act, 42 U.S.C. § 14043e-11 (b) (1),  whether a person who is (1) the spouse of a tenant in a rent-subsidized apartment, but not herself a lawful occupant of the apartment, and (2) the mother of two minor children who are lawful occupants of the apartment, has a right to intervene in a summary process action against the tenant to assert either her own right to tenancy or the children’s rights to tenancy; whether such a person may be disqualified from intervening in the action because of her alleged fraud or misconduct.

January 2017 Announcements 

SJC-12260 
D & H Distributing Co. v. Commissioner of Revenue

Where, in a three-party sales transaction involving a consumer located in the Commonwealth; a retailer located outside of the Commonwealth; and a wholesale distributor engaged in business in the Commonwealth, the wholesaler “drop ships” merchandise directly to the consumer at the retailer’s request, whether, for purposes of G. L. c. 64H, §§ 1 and 8 (a), the wholesaler or the Commissioner of Revenue has the burden to prove that the retailer is not engaged in business in the Commonwealth such that the wholesaler, rather than the retailer, is the “vendor” responsible for remitting sales tax on sold merchandise.

SJC-12259 
Commonwealth vs. Moses Ehiabhi

1.  “Does G. L. c. 94C, § 32A, vest improper discretion in the prosecutor to determine what subsection an individual will be charged under [i.e., G. L. c. 94C, § 32A (b) or § 32A (d),] particularly in light of the statement made to [the trial judge] that generally, prosecutors charge individuals under the more stringent subsections of the statute without further explanation or justification; and/or is the statute ambiguous in imposing contradictory mandatory minimum sentences on the same subsequent offense, requiring application of the rule of lenity.”  (Reported issue)
2.  Whether the arresting officer had adequate training and experience and a sufficient basis to believe that the defendant was operating his motor vehicle under the influence of marijuana, or that his operation was impaired as a result of ingestion of marijuana, therefore justifying the exit order and pat frisk.

SJC-12257 
Commonwealth vs. Michael J. Wolfe

Whether the Appeals Court’s holding in Commonwealth v. Downs, 53 Mass. App. Ct. 195 (2001) (concluding that there was no error in instructing the jury, in prosecution for operating under the influence of alcohol, that they were not to consider absence of evidence of breathalyzer test results), is incorrect and should be overruled.

SJC-12254 
Commonwealth vs. Kevin A. Mauricio

Whether an officer’s viewing of photographs on a digital camera found in the defendant’s possession at the time he was arrested violated the Fourth Amendment and art. 14 of the Declaration of Rights, where her stated reason for viewing the photographs allegedly was not investigatory but was to look for information that might identify the owner of the camera, which the officer believed may have been stolen, but where she did so without a warrant, after the defendant had been booked and the camera was already secured in police custody.

SJC-12255 
Commonwealth vs. Richard D. Jones

Whether a judge erred or abused his discretion in denying the defendant’s request for a summons, pursuant to Mass. R. Crim. P. 17 (a) (2), for the alleged victim’s counseling records; whether, as the defendant requests, “[t]he Dwyer-Lampron protocol should be modified to require a minimal showing of relevance for the issuance of rule 17 (a) (2) summonses and protected review by counsel, and a higher standard for use of the evidence at trial.”

SJC-12253 
135 Wells Ave, LLC vs. Housing Appeals Committee & another

Whether amendments and waivers of the city’s restrictive covenant on the Wells Avenue property are essentially “permits or approvals” for purposes of the comprehensive permit act, G. L. c. 40B, §§ 21 and 23.

SJC-12247 
Scott Phillips vs. Equity Residential Management

“With respect to the Massachusetts Security Deposit Law, Mass. Gen. Laws ch. 186, § 15B, when a lessor violates the terms of Section 15B (4) (iii), does the lessor’s corresponding violation of Section 15B (6) (b) , which ‘forfeit[s] his right to retain any portion of the security deposit for any reason,’ id. § 15B (6), also constitute a violation of Section 15B (6) (e) – ‘fail[ing] to return to the tenant the security deposit or balance thereof to which the tenant is entitled . . . within thirty days after termination of the tenancy’ – thereby triggering the statute’s treble damages provision, Section 15B (7)?”  (Certified question from Court of Appeals for the First Circuit)

SJC-12237 
Robert Ajemian, individually and as co-administrator & another vs. Yahoo!, Inc.

Whether the Federal Stored Communications Act, 18 U.S.C. § 2702, prohibits disclosure -- by an entity that provides electronic mail message services  -- of the contents of a deceased account holder's account, including the communications contained therein, to the administrators of his or her estate.

SJC-12240 
Derek L. Young vs. Joy Young

Whether and under what circumstances the Alimony Reform Act, G. L. c. 208, §§ 48-55, permits a judge to award general term alimony in an amount based on a percentage of the payor’s income.

SJC-12238 
Commonwealth vs. Casandra B. Littles

Whether G. L. c. 266, § 37, and the model jury instruction on larceny by check deprived the defendant of due process by permitting the jury to infer the defendant’s knowledge of insufficient funds and intent to defraud based on her failure to repay the dishonored checks within two days of being notified that they were dishonored.

SJC-12230 
Matter of E.C.

When a person has been found incompetent to stand trial on criminal charges, and ordered committed pursuant to G. L. c. 123, § 16 (b), whether dismissal of the criminal charges terminates any basis to seek further commitment of the person pursuant to G. L. c. 123, § 16 (c), or to continue the commitment pursuant to G. L. c. 123, § 6, while a § 16 (c) petition is pending.

SJC-12222 
George T. Koshy vs. Anypam Sachdev

On a petition filed pursuant to G. L. c. 156D, § 14.30 (2), under what circumstances a judge may order the dissolution of a corporation on the ground that a deadlock exists and that irreparable injury to the corporation is threatened or being suffered; what constitutes a deadlock within the meaning of G. L. c. 156D, § 14.30 (2).

SJC-12228 
Joanne M. Popp vs. Robert L. Popp

Whether, on a complaint for modification of a divorce judgment the predates the Alimony Reform Act, the retroactive imposition of the durational limits set forth in G. L. c. 208, § 49 (b), violates the recipient’s right to due process by depriving her of her substantive right to alimony or unconstitutionally changes the burden of proof by permitting such a modification without proof of a material change in circumstances. The case will be paired for oral argument with Susan P. Van Arsdale vs. William R. Van Arsdale, S.J.C. No. 12228, DAR-24738, A.C. No. 16-P-1315.

SJC-12164   
Great Divide Ins. Co. vs. Lexington Ins. Co.

"Where there is a motor vehicle accident and the primary commercial automobile liability insurance policy issued to the owner of the vehicle involved in the accident is exhausted, what is the priority of coverage between

"(1) a second primary commercial automobile liability insurance policy insuring the driver of the vehicle, which contains an other insurance/non-owned vehicle clause providing

"(a) that, with respect to motor vehicles that insured owns, this insurance is primary,

"(b) that, with respect to motor vehicles the insured does not own, this policy is excess and

"(c) that 'when this coverage form and any other coverage form or policy covers on the same basis, either excess or primary, we will pay only our share' and

"(2) a true excess liability insurance policy insuring the owner of the vehicle that contains another insurance clause providing that 'if other valid and collectible insurance applies to damages that are also covered by this policy, this policy will apply excess of the "other insurance"'?"

SJC-12243 
Virginia B. Smith & others vs. City of Westfield & others

Whether land can be designated for the purposes of article 97 of the Amendments to the Massachusetts Commonwealth in a manner sufficient to invoke that article’s protection by means other than a deed or other recorded restriction on the land; specifically,  whether the city sufficiently designated certain property for article 97 purposes, without recording any document so stating, by (1) passing an ordinance recognizing the property as a playground and naming it as such; (2) accepting a Federal grant to upgrade the property, which required a Statewide comprehensive outdoor recreation plan stating that land acquired or developed with the grant funds becomes protected under article 97; and (3) endorsing an open space and recreation plan that identified the property as “open space.”

SJC-12226 
Cristina Barbuto vs. Advantage Sales and Marketing LLC & others
Whether the termination of an employee’s employment based on her lawful use of medical marijuana outside the workplace violates G. L. c. 151B, § 4, or is otherwise wrongful; whether the medical marijuana act and the regulations promulgated thereunder create a private right of action for an employee who has been terminated because of her use of medical marijuana.

SJC-12225 
Commonwealth vs. Dasheem L. Dew
Whether a witness’s in-court identification of a defendant is inadmissible where it was preceded by an unequivocal pretrial identification by the witness that allegedly was the product of a suggestive procedure (although, apparently, not so suggestive as to require suppression); whether the degree of the suggestiveness of the pretrial identification is relevant in determining whether that identification was “unequivocal.”

November 2016 Announcements

SJC-12205 Lionel C. Nadeau vs. Director of the Office of Medicaid
SJC-12200 
Mary E. Daley vs. Director of the Office of Medicaid & another

Where pursuant to the terms of a self-settled irrevocable trust the settlor retains the right to “use and occupy” the real property that is the sole corpus of the trust, whether the property is therefore “available” to the individual and thus a countable asset for purposes of determining his or her eligibility for MassHealth benefits.

SJC-12202
Commonwealth vs. Richard Sanborn

Whether G. L. c. 209A authorizes a police officer to effectuate a motor vehicle stop in order to serve a civil abuse prevention order; and whether, in a prosecution for operating under the influence of intoxicating liquor, the judge properly allowed the defendant’s motion to suppress evidence obtained as a result of a motor vehicle stop effectuated solely for the purpose of serving a c. 209A abuse prevention order, and without reasonable suspicion that the defendant had committed, was committing, or was about to commit a crime or a civil motor vehicle violation.

SJC-12208
Secretary of Administration and Finance vs. Commonwealth Employment Relations Bd.

Whether G. L. c. 150E, § 7 (b), requires the Secretary of Administration and Finance to take any action beyond submitting “to the appropriate legislative body . . . a request for an appropriation necessary to fund the cost items contained” in a collective bargaining agreement.

SJC-12203
Richard Crowell vs. Massachusetts Parole Board

1.  Whether and to what extent the parole board may consider a person’s disability as a factor in determining the person’s suitability for parole; and whether the board has an obligation to reasonably accommodate a parole applicant’s disability in setting the terms and conditions of parole.
2.  In a certiorari action under G. L. c. 249, § 4, seeking judicial review of an administrative action, whether an agency may file a motion to dismiss under Mass. R. Civ. P. 12 (b) (6), before filing the administrative record.
3.  Where the Governor commuted the plaintiff’s life sentence to a sentence of thirty-six years to life, whether the plaintiff is serving a “life sentence” for purposes of the parole rehearing provisions of G. L. c. 127, § 133A.

SJC-12204 
Brian Benoit vs. City of Boston

Whether G. L. c. 268A, § 25, bars the further payment of worker’s compensation benefits to a public employee who has been suspended from his work following indictment for and conviction of criminal misconduct in public office; if so, whether § 25 is a defense to payment of worker’s compensation benefits that may be waived if not asserted before the Department of Industrial Accidents.

SJC-12201 
George Modica vs. Sheriff of Suffolk County & other
For purposes of the assault pay statutes, G. L. c. 30, § 58, and G. L. c. 126, § 18A, whether “bodily injuries” are only those that involve “physical damage to a person’s body.”

SJC-12207 
People For The Ethical Treatment Of Animals, Inc. vs. Department of Agricultural Resources & another
Whether, as the judge ruled, the department made a reasonable judgment that the disclosure of certain information contained in animal health certificates – identifying people, buildings, and facilities involved in housing and transporting nonhuman primates in Massachusetts for research purposes – would jeopardize public safety, and that the information is therefore exempt from disclosure under the public records statute by operation of the public safety exemption, see G. L. c. 4, § 7, Twenty sixth (n), based on the department’s showing that such researchers and facilities have been victimized by criminal acts committed by individuals and organizations who oppose their work; whether, as the judge ruled, the “reasonable judgment” language in § 7, Twenty sixth (n) (“which, in the reasonable judgment of the record custodian . . . is likely to jeopardize public safety”), which does not appear in any of the statute’s various other exemptions, means that a keeper of records is entitled to a greater measure of deference under this exemption than under other exemptions.

October 2016 Announcements

SJC-12195  
Guardianship of K.N.

Whether an indigent guardian of a minor child, who allegedly has established herself as the child's de facto parent, has a right to counsel when the child's biological parent seeks to remove her as guardian and terminate the guardianship.  See L.B. v. Chief Justice of the Probate & Family Court, 474 Mass. 231 (2016); Guardianship of V.V., 470 Mass. 590 (2015).

September 2016 Announcements

SJC-12183 
Matter of N. L.

In the context of civil commitment or treatment proceedings, whether the denial of a respondent's first request for a continuance of a hearing is barred by G. L. c. 123, §§ 5, 7 or 8B; whether, or in what manner, G. L. c. 123, §§ 5, 7 or 8B, limit a judge's discretion to deny a respondent's first request for a continuance of a hearing.

SJC-12138 
In re Guardianship of a Minor

In proceedings for appointment of a guardian for an immigrant under the age of twenty-one, what showing must be made to establish that “reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law,” 8 U.S.C. § 1101 (a) (27) (J), for purposes of eligibility for special immigrant juvenile status under Federal law.

SJC-12081 
Commonwealth vs. R. A.
Whether or in what circumstances an individual involuntarily brought to, and temporarily detained in, a psychiatric unit of a hospital and allegedly threatened with involuntary medication, may assert an affirmative defense in the nature of self-defense; what instructions should a jury be given concerning refusal of medication.

SJC-12157  
Kevin Bridgeman & others vs. District Attorney for Suffolk County & others.  
Whether the persons who were convicted of drug-related charges and in whose cases former Hinton Drug Lab Assistant Analyst Annie Dookhan signed the certificate of drug analysis as the analyst, who are collectively referred to as the "Dookhan defendants," are entitled to a comprehensive remedy, including, whether all cases involving misconduct by Dookhan should be dismissed or subjected to a court-imposed deadline.  

SJC-12158 
William Hebb vs. Commonwealth
Where the defendant had been charged with operating under the influence of alcohol and, as part of his first trial, the jury returned a verdict of not guilty on the impairment theory and the judge declared a mistrial on the per se theory, whether being recharged for the crime violates double jeopardy principles.  

SJC-12160 
Kristi Koe vs. Edward Dolan, Commissioner of Probation, & others
Where the plaintiff is a former sex offender who has been relieved of the obligation to register, whether the provisions G. L. c. 276, § 100A(6), that restrict her eligibility to seal her sex offender records, violates her equal protection and due process rights under the Federal and State constitutions.  

SJC-12161  
Cape Wind Assocs., LLC vs. Energy Facilities Sitting Board
Whether the board erred or abused its discretion in denying an extension request by Cape Wind Associates, LLC, of a prior approval of transmission facilities.  

SJC-12135  
Impounded case

Whether a Juvenile Court judge has discretion to relieve a juvenile from GPS monitoring as a condition of probation under G. L. c. 265, § 47, where the juvenile pleaded guilty as a youthful offender by reason of a qualifying sex offense and received a combination sentence of commitment to the Department of Youth Services until age twenty-one followed by a suspended sentence in the State prison.

SJC-12136 
Sean Gannon vs. City of Boston

In a handicap discrimination case in which an employer acknowledges reliance on an employee's physical impairments for its employment decision, for purposes of G. L. c. 151B, § 4 (16):  (1) what are the parties' respective burdens of proof and production with regard to the determination whether the employee is a "qualified handicapped person" who has been subjected to an adverse employment action because of his or her handicap; and (2) whether the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to a claim of handicap discrimination in such a case.

SJC- I2137
IBEW Local No. 129 Benefit Fund & others vs. Joseph Tucci & others

In the context of a decision to approve a corporate plan of merger, whether a director's fiduciary duties run solely to the corporation, pursuant to G. L. c. 156D, § 8.30 (a), or otherwise, such that a shareholder's challenge to the fairness or validity of a proposed merger transaction must be brought as a derivative action; if so, whether a shareholder may assert such claims directly if derivative standing is extinguished upon completion of the merger transaction.

SJC -12134 
Commonwealth vs. Bruno Pinto

For purposes of determining whether reasonable suspicion has been established, whether the absence of evidence regarding the source of police information should be treated differently from the police's receipt of an anonymous tip.

SJC-12103 
Debra L. Marquis vs. Google, Inc.

Whether the civil remedy provisions of the Massachusetts Wiretap Act, G. L. c. 272, § 99 (Q), apply to electronic mail messages sent or received by Massachusetts residents, but intercepted outside of Massachusetts; whether the judge erred in declining to certify a class on the ground that common issues did not predominate over the individual issue of whether each class member had consented to the interception of his or her electronic mail messages.

SJC-12101 
Chitwood vs. Vertex Pharmaceuticals, Inc.

Where G. L. c. 156D, § 16.02, entitles a shareholder of a corporation to inspect and copy corporate records if the shareholder meets certain requirements, what must the shareholder show to meet the requirement that his demand to inspect and copy records be "for a proper purpose" pursuant to § 16.02 (c) (1).

SJC-12110 
Commonwealth vs. James Garvey

Whether the habitual offender statute, G. L. c. 279, § 25, which provides, in part, that the defendant has been "previously twice convicted," requires that the prior convictions be based on "separate, prior criminal episodes" or only that the defendant has two prior convictions.  Whether there is a conflict between the plain language and the purpose of the statute.  

SJC-12115 
Commonwealth vs. Victor Rosario

Whether the defendant, who was convicted of arson in a dwelling house and murder in the second degree in 1983, is entitled to a new trial on the ground that newly discovered evidence concerning (1) scientific investigation of fires, (2) the defendant’s mental state at the time of his interrogation, and (3) police interrogation techniques casts real doubt on the voluntariness of his confession and on the justice of his conviction.

SJC-12069 
State Bd. of Retirement vs. Thomas M. Finneran & others

Whether G. L. c. 32, § 15 (4), prohibits the payment of a retirement allowance to a member of the Commonwealth's retirement system who was convicted of obstruction of justice, arising out of giving false testimony in a Federal lawsuit concerning a law passed by the Massachusetts House of Representatives while the member was Speaker of the House.

SJC-12113 
Impounded case
"Is it permissible under the Code of Federal Regulations for the Massachusetts Department of Children and Families to proceed to seek a termination of parental rights where the child(ren) are present in the United States pursuant to the Unaccompanied Refugee Minor Program and both parents are also believed to be present in the United States, i.e., not dead or missing and presumed dead."

SJC-12114 
Commonwealth vs. Joel D. Morgan

"1.  Does the VALOR Act, G. L. c. 276A, §§ 10-11, added by St. 2012, c. 108, § 16, confer a District Court judge with discretion (a) to enter a CWOF on behalf of a qualifying veteran who admits to sufficient facts on a complaint charging OUI-second, and (b) to dismiss the charge upon the veteran's completion of a court-approved treatment or other 'diversion program[],' G. L. c. 276A, § 11, notwithstanding language in chapter 90 prohibiting a CWOF for an OUI offender who has previously been assigned to an alcohol or substance abuse treatment program within ten days of the current offense?
"2.  Does chapter 276A, as amended in 2012 by the VALOR Act, confer a District Court judge with discretion to dismiss outright, over the Commonwealth's objection, a complaint charging OUI-second upon a qualifying veteran's completion of a treatment or other 'diversion program[]' approved by the judge pursuant to G. L. c. 276A, § 11."

SJC-12151 
Commonwealth vs. Kyle Tuschall

Whether a strong chemical odor emanating from the defendant's apartment, together with the police's inability to locate a tenant, justified their warrantless entry into the apartment under the emergency-aid exception.

SJC-12142 
Mount Vernon Fire Ins. Co. vs. Visionaid, Inc. f/k/a Boulton Co., Inc.

"(1) Whether, and under what circumstances, an insurer (through its appointed panel counsel) may owe a duty to its insured -- whether under the insurance contract or
the Massachusetts 'in for one, in for all' rule -- to prosecute the insured's
counterclaim(s) for damages, where the insurance contract provides that the insurer
has a 'duty to defend any Claim,' i.e., 'any proceeding initiated against [the
insured]'"?

"(2) Whether, and under what circumstances, an insurer (through its appointed panel counsel) may owe a duty to its insured to fund the prosecution of the insured's
counterclaims) for damages, where the insurance contract requires the insurer to
cover 'Defense Costs,' or the 'reasonable and necessary legal fees and expenses
incurred by [the insurer], or by any attorney designated by [the insurer] to defend
[the insured], resulting from the investigation, adjustment, defense, and appeal of a
Claim'?

"(3) Assuming the existence of a duty to prosecute the insured's counterclaim(s), in the event it is determined that an insurer has an interest in devaluing or otherwise
impairing such counterclaim(s), does a conflict of interest arise that entitles the
insured to control and/or appoint independent counsel to control the entire
proceeding, including both the defense of any covered claims and the prosecution
of the subject counterclaim(s)?" (Certified questions)