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WITHDRAWN
JUD 671
BELCHERTOWN COURTHOUSE
Messrs. Lees and Rosenberg moved
that the bill be amended, in Section 2, in item 0330-0300 by striking out
“November 1, 2006” and inserting in place thereof the following date:- “April
1, 2007”
JUD 672
MASSACHUSETTS LEGAL ASSISTANCE CORPORATION
Mr. Moore moved that the bill amended, in Section 2, in item 0321-1600, by striking the
figure, “$9,470,424 and replacing therein the following new figure:- “$12,
066,799”
JUD 673
QUABBIN MEDIATION
Mr. Brewer moved that the bill
amended, in Section 2, in item 0330-0410, by striking the wording “; provided
further, that not less than $50,000 shall be expended for Quabbin Mediation in
Athol;” and inserting in place thereof the following wording:- “; provided
further that not less than $113,000 shall be expended for Quabbin Mediation in
Athol;”
JUD 674
JUD 675
HAMPDEN DISTRICT ATTORNEY
Messrs. Lees and Knapik moved that
the bill be amended, in Section 2, in item 0340-0500 by striking out the figure
“$7,086,499” and inserting in place thereof the following figure:- “$7,297,786”
CRIMES AGAINST THE ELDERLY
Messrs. Lees, Tisei, Tarr, Hedlund, Knapik and Brown moved that the bill be amended by inserting, after Section_____, the following new Sections:-
“SECTION _____. Subsection
(a) of section 15A of chapter 265 of the General Laws, as appearing in the 2004
Official Edition is hereby amended by striking out the word “ten”, in line 3,
and inserting in place thereof the following figure:- 15; by striking out the
word “one”, in line 4, and inserting in place thereof the following word:- two;
by striking out the words “two and one-half”, in line 5, and inserting in place
thereof the following word:- five; and by striking out the word
"two", in line 9, and inserting in place thereof the following word:-
five.
SECTION
_____. Subsection (a) of section 15B of
said chapter 265 is hereby amended by striking out the word "five",
in line 3, and inserting in place thereof the following word:- ten; by striking
out the word "one", in line 4, and inserting in place thereof the
following word:- two; by striking out the words "two and one-half",
in line 5, and inserting in place thereof the following word:- five; and by
striking out the words "one year", in lines 9-10, and inserting in
place thereof the following words:- “five years.” SECTION _____. Subsection (a) of section 18 of said chapter
265 is hereby amended by striking out the word "twenty", in line 3,
and inserting in place thereof the following figure:- 25; and by striking out
the word "two", in line 10, and inserting in place thereof the
following word:- five.
SECTION
_____. Subsection (a) of section 19 of
said chapter 265 is hereby amended by striking out the words "not less
than two years", in lines 8-9, and inserting in place thereof the
following word:- life; by striking out the word "two", the second
time it appears in line 9, and inserting in place thereof the following word:-
ten; and by striking out the word "two", in line 12, and inserting in
place thereof the following word:- ten.”
JUD 677
Messrs. Lees, Tisei, Tarr, Hedlund, Knapik and Brown moved that the bill be amended by inserting, after Section _____, the following new Section:-
“SECTION _____. Section 1A of chapter 188 of the General
Laws, as appearing in the 2004 Official Edition, is hereby amended by striking
out the word “sixty-two”, in line 2, and inserting in place thereof the
following figure:- “55.” ”
UMASS FAMILY COURT CLINIC (PROBATE COURT)
Ms. Chandler moved that the bill
amended, in Section 2, in item 0333-0002 by striking the words “,and the
REDRAFT
JUD 679
WITHDRAWN
JUD 680
TRIAL COURT
Mr. Baddour moved that the bill be
amended, in Section 2, in item 0339-1003, by striking out the figure
“$5,706,757” and inserting in place thereof the following figure:-“$5,862,043”.
JUD 681
INDUSTRIAL SAFETY
Mr. Tolman and Mr. Barrios moved that
the bill be amended, in Section 2, in item 0810-0045, by inserting after “chapter
150E of the General Laws” the following: “that the department shall employ
twelve additional industrial safety and health inspectors in fiscal year 2007
in excess of any such positions approved as of
REDRAFT
JUD 682
BLACK MEN OF GREATER SPRINGFIELD, INC.
Messrs. Buoniconti and Lees moved that the bill be amended, in Section 2, in item 8900-0001 by adding:-
“and provided further, that not less than $100,000 shall be expended on Black Men of Greater Springfield, Inc. in the City of Springfield” and further striking the figure “$451,497,512” from said line item and replacing it with “$451,597,512”.
JUD 683
HAMPDEN
Messrs. Buoniconti and Lees moved that the bill be amended, in Section 2, in item 0333-0002 be amended by adding:-
“and provided that not less than
$2,607,285 shall be expended for the Hampden Division of the Probate and Family
Court”.
JUD 684
JUD
- RESOR - RELATIVE TO PREVENTION OF HARRASSMENT
Ms. Resor, Mr. Brown, Mr. Antonioni, Ms. Chandler, Ms. Tucker, Ms. Spilka, Mr. Augustus, Mr. Barrios and Mr. Moore moved that the bill amended by inserting, after Section 44, the following new section:-
SECTION 44A. The General Laws are hereby amended by inserting after section 46 in chapter 265 the following section:-
Section 47.
HARASSMENT
Section 1. Definitions. In this chapter, the following words shall have the following meanings:
“Court”, the
“Harassment”, the occurrence of one or more of the following: (a) willfully and maliciously engaging in conduct or acts directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer emotional distress; or (b) engaging in intimidation of witnesses under the provisions of chapter 268 section 13B of the Massachusetts General Laws; or (c) causing another to engage involuntarily in sexual conduct; or (d) causing another to engage involuntarily in sexual conduct by force, threat, or duress, included but not limited to, incapacitation through chemical restraint, drugs or intoxication; or (e) engaging in the enticement of a child under the age of 16 under the provisions of chapter 265 section 26C of the Massachusetts General Laws.
“Harassment Prevention Orders”, an order or emergency order granted under this chapter.
“Involuntarily”, a lack of freely given consent.
“Law officer”, any officer authorized to serve criminal process.
“Petitioner”, any named petitioner for a Harassment Prevention Order or any named victim of harassment on whose behalf the petition is brought.
“Protection order issued by another jurisdiction”, any injunction or other order issued by a court of another state, territory, or possession of the United States, the commonwealth of Puerto Rico, or the District of Columbia, or tribal court that is issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communications with, or physical proximity to a victim of harassment, including temporary and final orders issued by civil and criminal courts filed by or on behalf of a person seeking protection.
“Sexual Conduct” any intentional or knowing touching or fondling, either directly or through clothing, of the sex organs, anus or breast, or any part of the body, or any transfer or transmission of semen upon any part of the clothed or unclothed body, for the purpose of sexual gratification or arousal; OR any contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or object into the sex organ or anus of another, including but not limited to cunnilingus, fellatio or anal penetrations. Evidence of emission of semen is not required to prove sexual conduct.
“Victim'',
any person who suffers harassment, without the need of a report of the offense
to the police or the issuance of a complaint or indictment.
Section 2. Venue. Proceedings under this chapter shall be filed, heard and determined in the Superior, District, Boston Municipal or Juvenile (if the petitioner or respondent is a juvenile) court departments of the trial court having venue over where: (1) the petitioner resides; (2) the respondent resides; or (3) the alleged harassment occurred.
Section 3. Persons Protected By This Act. A petition for a Harassment Prevention Order may be filed:
(1) by any person who is a victim of harassment; or
(2) by a
person on behalf of a minor child or an adult who is a victim of
harassment but, because of age, disability, and health cannot file the petition.
Section 4. Remedies; Period of Relief. (a) A petitioner may file a petition requesting protection including, but not limited to, the following orders:
(1) ordering the respondent to refrain from attempting to cause or causing physical harm or harassment of the petitioner, whether the petitioner is an adult or minor;
(2) ordering the respondent to refrain from contacting the petitioner, either directly or indirectly, unless authorized by the court, whether the petitioner is an adult or minor;
(3) ordering the respondent to stay away from the petitioner, the petitioner’s household, multiple family dwelling and workplace; or
(4)
ordering the respondent to pay the petitioner monetary compensation for
the losses suffered as a direct result of such harassment. Compensatory loss shall include, but not be
limited to, loss of earnings, out-of-pocket losses for injuries sustained,
replacement costs for locks or personal property removed or destroyed, medical
costs, moving expenses, cost for obtaining an unlisted telephone number and
reasonable attorney’s fees.
(b) Any relief granted by the court shall be for a fixed period of time not to exceed 1 year. Every order shall on its face state the time and date the order is to expire. If the petitioner appears at the court on or before the close of business on the date the order is to expire, the court shall determine whether or not to enter a permanent order, or to extend the order for another period of time reasonably necessary to prevent future harassment or intimidation of the petitioner by the respondent, or contact between the petitioner and the respondent. When the expiration date stated on the order is on a weekend day or holiday, or a date when the court is closed to business, the order shall not expire until the close of business on the next date that the court is open to business. The petitioner may appear on such next court business day to request that the order be extended. At a hearing to extend the order for such additional time, the court shall consider the totality of the circumstances. The fact that harassment or contact between the parties has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order, or allowing an order to expire or be vacated, or for refusing to issue a new order.
(c) The court may modify its order at any subsequent time upon motion by
either party. When the petitioner's address is inaccessible to the respondent, as provided in section 8, and the respondent has filed a motion to modify the court's order, the court shall be responsible for notifying the petitioner. In no event shall the court disclose any such confidential address.
(d) A court shall not deny any petition filed under this chapter solely because it was not filed within a particular time period after the last alleged incident of harassment.
Section 5. Commencement of action; filing fees. (a) An action for a Harassment Prevention Order is commenced:
(1) independently, by filing a Harassment Prevention Order petition in any court, and shall not be contingent upon reporting the alleged harassment to a law enforcement agency nor shall it be contingent upon prosecuting such case criminally; or
(2) in conjunction with a delinquency petition or a criminal prosecution
for the same act, by filing a petition for a Harassment Prevention Order under the same case number as the delinquency petition or criminal prosecution and treated as a civil and separate matter, to be granted during pre-trial release of a respondent, with any dispositional order issued under section 58 of chapter 119, or as a condition of release, supervision, conditional discharge, probation, periodic imprisonment, parole, or mandatory supervised release, or in conjunction with imprisonment or a bond forfeiture warrant, provided that (i) the violation is alleged in an information, petition, indictment, or delinquency petition on file and the alleged victim is a person that may be afforded protection under this chapter, and (ii) the petition, which is filed by the district attorney, names a victim of the alleged crime as a petitioner.
(b) Withdrawal or dismissal of any petition for a Harassment Prevention Order prior to adjudication shall operate as a dismissal without prejudice.
(c) Any action commenced under the provisions of this chapter shall not preclude any other civil or criminal remedies. Dismissal of the delinquency petition or criminal prosecution for the same act, or a finding of not guilty, shall not require dismissal of the action for a Harassment Prevention Order.
(d) No filing fee shall be charged by the clerk of the court for the filing of the petition. Neither the petitioner nor the petitioner’s attorney shall be charged for certified copies of any orders entered by the court, or any copies of the file reasonably required for future court action or as a result of the loss or destruction of petitioner’s copies.
Section 6. Form
of complaint; promulgation. The
chief justices for Administration and Management, in consultation with the
chief justices of the Superior,
District, Boston Municipal or Juvenile court departments shall promulgate a
form of petition for use under this chapter which shall be in such form and
language to permit a petitioner to prepare and file such petition pro se.
Section 7. Pleading; confidentiality of records. (a) A petition for a Harassment Prevention Order shall be in writing and verified or accompanied by affidavit and shall allege that the petitioner has been the victim of harassment and there exists a substantial likelihood of immediate danger of harassment.
(b) The records of cases arising out of an action brought under this chapter where the petitioner or respondent is a minor shall be withheld from public inspection except by order of the court; provided, that such records shall be open, at all reasonable times, to the inspection of the minor, said minor’s parent, guardian, attorney, and to the petitioner and the petitioner’s attorney, or any of them.
(c) The petitioner’s cellular telephone number, residential address, residential telephone number and workplace name, address and telephone number, contained within the court records of cases arising out of an action brought by a petitioner under this chapter, shall be confidential and withheld from public inspection at all times, except by order of the court and pursuant to the provisions of chapter 265 section 24C of the general laws. All confidential portions of the records shall be accessible at all reasonable times to the petitioner and petitioner's attorney, to others specifically authorized by the petitioner to obtain such information, and to prosecutors, victim-witness advocates as defined in section 1 of chapter 258B, sexual assault counselors as defined in section 20J of chapter 233, and law enforcement officers, if such access is necessary in the performance of their duties. This paragraph shall apply to any protection order issued by another jurisdiction that is filed with a court of the commonwealth pursuant to section 14. Such confidential portions of the court records shall not be deemed to be public records under Clause Twenty-sixth of section 7 of chapter 4.
(d) Upon the filing of a petition under this chapter, the court may enter such temporary orders as it deems necessary to protect a petitioner from further contact by the respondent. Such relief shall not be contingent upon reporting the alleged harassment to a law enforcement agency nor shall it be contingent upon prosecuting such case criminally nor may the court consider such factors in rendering its decision.
(e) In any proceeding to obtain a Harassment Prevention Order, a petitioner must establish by a preponderance of the evidence that he/she is a victim of harassment and that there is a substantial likelihood of immediate danger of harassment.
(f) If the court finds reasonable grounds to believe that the petitioner is the victim of harassment and there is a substantial likelihood of immediate danger of harassment, the court may enter such temporary relief orders without notice as it deems necessary to protect the petitioner from harassment and shall immediately thereafter notify the respondent that the temporary orders have been issued. The court shall give the respondent an opportunity to be heard on the question of continuing the temporary order and of granting other relief as requested by the petitioner no later than 10 court business days after such orders are entered. It is recommended that all such hearings be conducted at sidebar.
Notice shall be made by the appropriate law enforcement agency as provided in section 9.
If the respondent does not appear at such subsequent hearing, the temporary orders shall continue in effect without further order of the court.
Section 8. Hearing. When a petitioner seeks relief under sections 3, 4, 7, or 10, it is recommended that any such hearing be heard at sidebar in order to protect the petitioner’s privacy. The rules of evidence do not apply. If the petitioner is a minor, or the application is filed on behalf of a minor, it is recommended that the hearing be closed to the public as in juvenile proceedings.
Section 9. Harassment Prevention Order; record search; service of order; enforcement; violations. An order under this statute shall also be filed in the Statewide Domestic Violence Record Keeping System. When considering a petition filed under this chapter, a judge shall cause a search to be made of the records contained within the Statewide Domestic Violence Record Keeping System maintained by the office of the commissioner of probation and shall review the resulting data to determine whether the named respondent has a civil or criminal record involving domestic or other violence. Upon receipt of information that an outstanding warrant exists against the named respondent, a judge shall order that the appropriate law enforcement officials be notified and shall order that any information regarding the respondent's most recent whereabouts shall be forwarded to such officials. In all instances where an outstanding warrant exists, a judge shall make a finding, based upon all of the circumstances, as to whether a substantial likelihood of immediate danger of harassment to the petitioner exists. In all instances where a substantial likelihood of immediate danger of harassment is found to exist, the judge shall notify the appropriate law enforcement officials of such finding and such officials shall take all necessary actions to execute any such outstanding warrant as soon as is practicable.
Whenever the court orders under this chapter that an order from this jurisdiction and /or another jurisdiction become effective in the Commonwealth and that the respondent refrain from harassing the petitioner or have no contact with the petitioner, the clerk-magistrate shall transmit 2 certified copies of each such order and 1 copy of the petition and summons forthwith to the appropriate law enforcement agency which, unless otherwise ordered by the court, shall serve 1 copy of each order upon the respondent, together with a copy of the petition, order and summons and notice of any suspension or surrender ordered pursuant to section 12. The law enforcement agency shall promptly make its return of service to the court.
Law enforcement officers shall use every reasonable means to enforce such Harassment Prevention Orders. Law enforcement agencies shall establish procedures adequate to insure that an officer on the scene of an alleged violation of such order may be informed of the existence and terms of such order. The court shall notify the appropriate law enforcement agency in writing whenever any such order is vacated and shall direct the agency to destroy all record of such vacated order and such agency shall comply with that directive.
Each Harassment Prevention Order issued shall contain the following statement: VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE.
Any violation of such order or a protection order issued by another jurisdiction shall be punishable by a fine of not more than $5,000, or by imprisonment for not more than 2 ˝ years in a house of correction, or by both such fine and imprisonment. In addition to, but not in lieu of, the forgoing penalties and any other sentence, fee or assessment, including the victim witness assessment as provided in section 8 of chapter 258B, the court shall order persons convicted of violating a provision of this chapter an additional assessment of $25 that shall be transmitted to the treasurer for deposit into the General Fund.
In each instance of a violation of a Harassment Prevention Order or a protection order issued by another jurisdiction, the court may order the respondent to pay the petitioner for all damages including, but not limited to, loss of earnings, out-of-pocket losses for injuries sustained, replacement costs for locks or personal property removed or destroyed, medical costs, moving expenses, cost for obtaining an unlisted telephone number, and reasonable attorney's fees.
Any
such violation may be enforced in the superior, district,
The provisions of section eight of chapter one hundred and thirty six shall not apply to any order, complaint or summons issued pursuant to this section.
Section 10. Granting of relief when court is closed; certification. When the court is closed for business or the petitioner is unable to appear in court because of severe hardship due to the petitioner's physical condition, any justice of the Superior, District, Boston Municipal, or Juvenile (if the petitioner or respondent are juveniles) court departments may grant relief to the petitioner as provided under section 8 if the petitioner has been a victim of harassment and demonstrates a substantial likelihood of immediate danger of harassment. In the discretion of the justice, such relief may be granted and communicated by telephone to an officer or employee of an appropriate law enforcement agency, who shall record such order on a form of order promulgated for such use by the Chief Justice for Administration and Management and shall deliver a copy of such order on the next court day to the clerk-magistrate of the court having venue and jurisdiction over the matter. If relief has been granted without the filing of a petition pursuant to this section, the petitioner shall appear in court on the next available business day to file said petition. If the petitioner in such a case is unable to appear in court without severe hardship due to the petitioner's physical condition, then a representative may appear in court on the petitioner's behalf and file the requisite petition with an affidavit setting forth the circumstances preventing the petitioner from appearing personally. Notice to the petitioner and respondent and an opportunity for the respondent to be heard shall be given as provided in section 7.
Any order issued under this section and any documentation in support thereof shall be certified on the next court day by the clerk-magistrate of the court issuing such order to the court having venue and jurisdiction over the matter. Such certification to the court shall have the effect of commencing proceedings under this chapter and invoking other provisions of this chapter but shall not be deemed necessary for an emergency order issued under this section to take effect.
Section 11. Order for suspension and surrender of firearms license; surrender of firearms; petition for review; hearing. Upon issuance of a temporary or emergency order under sections 7 or 10, the court shall, if the petitioner demonstrates a substantial likelihood of immediate danger of harassment, order the immediate suspension and surrender of any license to carry firearms and or firearms identification card which the respondent may hold and order the respondent to surrender all firearms, rifles, shotguns, machine guns and ammunition which the respondent then controls, owns or possesses in accordance with the provisions of this chapter and any license to carry firearms or firearms identification cards which the respondent may hold shall be surrendered to the appropriate law enforcement officials in accordance with the provisions of this chapter and, said law enforcement official may store, transfer or otherwise dispose of any such weapon in accordance with section 129D of chapter 140; provided however, that nothing herein shall authorize the transfer of any weapons surrendered by the respondent to anyone other than a licensed dealer. Notice of such suspension and ordered surrender shall be appended to the copy of Harassment Prevention Order served on the respondent pursuant to section 7. Law enforcement officials, upon the service of said orders, shall immediately take possession of all firearms, rifles, shotguns, machine guns, ammunition, any license to carry firearms and any firearms identification cards in the control, ownership, or possession of said respondent. Any violation of such orders shall be punishable by a fine of not more than $5,000, or by imprisonment for not more than 2 1/2 years in a house of correction, or by both such fine and imprisonment.
Any respondent aggrieved by an order of surrender or suspension as described in the first sentence of this section may petition the court which issued such suspension or surrender order for a review of such action and such petition shall be heard no later than 10 court business days after the receipt of the notice of the petition by the court. If said license to carry firearms or firearms identification card has been suspended upon the issuance of an order issued pursuant to sections 7 or 10, said petition may be heard contemporaneously with the hearing specified in section 7. Upon the filing of an affidavit by the respondent that a firearm, rifle, shotgun, machine gun or ammunition is required in the performance of the respondent's employment, and upon a request for an expedited hearing, the court shall order said hearing within 2 business days of receipt of such affidavit and request but only on the issue of surrender and suspension pursuant to this section.
Section 12. Continuation or modification of order for surrender or suspension. Upon the continuation or modification of an order issued pursuant to section 8, or upon petition for review as described in section 11, the court shall also order or continue to order the immediate suspension and surrender of a respondent's license to carry firearms, including a Class A or Class B license, and firearms identification card and the surrender of all firearms, rifles, shotguns, machine guns or ammunition which such respondent then controls, owns or possesses if the court makes a determination that the return of such license to carry firearms, including a Class A or Class B license, and firearm identification card or firearms, rifles, shotguns, machine guns or ammunition presents a likelihood of harassment to the petitioner. A suspension and surrender order issued pursuant to this section shall continue so long as the protection order to which it relates is in effect; and, any law enforcement official to whom such weapon is surrendered may store, transfer or otherwise dispose of any such weapon in accordance with section 129D of chapter 140; provided, however, that nothing herein shall authorize the transfer of any weapons surrendered by the respondent to anyone other than a licensed dealer. Any violation of such order shall be punishable by a fine of not more than $5,000 or by imprisonment for not more than 2 ˝ years in a house of correction or by both such fine and imprisonment.
Section 13. Protection order issued by another jurisdiction; enforcement; filing; presumption of validity. Any protection order issued by another jurisdiction shall be given full faith and credit throughout the commonwealth and enforced as if it were issued in the commonwealth for as long as the order is in effect in the issuing jurisdiction.
A person entitled to protection under a protection order issued by another jurisdiction may file such order in the Superior, District, Boston Municipal, or Juvenile (if the petitioner or respondent are juveniles) court departments by filing with the court a certified copy of such order which shall be entered into the Statewide Domestic Violence Record Keeping System pursuant to section 10. Such person shall swear under oath in an affidavit, to the best of such person's knowledge that such order is presently in effect as written. Upon request by a law enforcement agency, the clerk of such court shall provide a certified copy of the protection order issued by the other jurisdiction.
A law enforcement officer may presume the validity of, and enforce in accordance with section 9, a copy of a protection order issued by another jurisdiction which has been provided to the law enforcement officer by any source; provided, however, that the officer is also provided with a statement by the person protected by the order that such order remains in effect. Law enforcement officers may rely on such statement by the person protected by such order and cannot be subjected to civil or criminal liability so long as they have acted in good faith reliance upon the representations.
Section 14. Powers of police. Whenever any law officer has reason to believe that an individual has been harassed or is in danger of being harassed, such officer shall use all reasonable means to prevent further harassment. The officer shall take, but not be limited to the following action:
(1) remain on the scene of where said harassment occurred or was in danger of occurring as long as the officer has reason to believe that at least one of the parties involved would be in immediate physical danger without the presence of a law officer. This shall include, but not be limited to remaining in the dwelling for a reasonable period of time;
(2) assist the victim in obtaining medical treatment necessitated by the harassment, which may include driving the victim to the emergency room of the nearest hospital, or arranging for appropriate transportation to a health care facility, notwithstanding any law to the contrary. If possible, the officer shall take the victim of a sexual assault to a location where a sexual assault nurse examiner is present. The officer shall consider the victim's preference in this regard and what is reasonable under all the circumstances;
(3) assist the victim in locating and getting to a safe place including, but not limited to, a designated meeting place for a shelter or a family member or friend's residence;
(4) give such person immediate and adequate notice of his or her rights. Such notice shall consist of handing said person a copy of the statement that follows below and reading the same to said person. If said person's native language is not English, the statement shall be then provided in said person's native language whenever possible.
"You have the right to appear at the Superior, District, Boston Municipal, or Juvenile (if the petitioner or respondent is a juvenile) court, if you reside within the appropriate jurisdiction, and file a petition requesting any of the following applicable orders: (a) an order directing your attacker to refrain from contacting you, an order directing your attacker to stay away from you, your dwelling and your workplace; and (b) an order directing your attacker to pay you for losses suffered as a result of the harassment including, but not limited to, loss of earnings, out-of-pocket loses for injuries sustained, replacement costs for locks or personal property removed or destroyed, medical costs, moving expenses, cost for obtaining an unlisted telephone number and reasonable attorney’s fees.
Initiation of a petition under this statute is not contingent upon going forward with a criminal proceeding nor is it contingent upon ongoing cooperation with law enforcement.
For an emergency on weekends, holidays, or weeknights the police will refer you to a justice of the Superior, District, Boston Municipal, or Juvenile (if the petitioner or respondent is a juvenile) court departments.
You have the right to go to the appropriate Superior, District, Boston Municipal, or Juvenile (if the petitioner or respondent is a juvenile) court and seek a criminal complaint for related offenses.
If you are in need of medical treatment, you have the right to request that an officer present drive you to the nearest hospital or otherwise assist you in obtaining medical treatment. If you are the victim of sexual assault and if possible, the officer shall take you to a location where a sexual assault nurse examiners is present. The officer shall consider your preference in this regard and what is reasonable under all the circumstances.
If you believe that police protection is needed for your physical safety, you have the right to request that the officer present remain at the scene until you can leave or until your safety is otherwise ensured. You may also request that the officer assist you in locating and taking you to a safe place, including but not limited to a designated meeting place for a shelter or a family member's or a friend's residence, or a similar place of safety.
You may request a copy of the police incident report at no cost from the police department.''
The officer shall leave a copy of the foregoing statement with such person before
leaving the scene or premises.
(5) assist such person by activating the emergency judicial system when the court is closed for business;
(6) inform the victim that the assailant will be eligible for bail and may be promptly released; and
(7)
arrest any person a law officer witnesses or has probable cause to believe has
violated a temporary or permanent Harassment Prevention Order or judgment
issued. When there are no Harassment
Prevention Orders or judgments in effect, arrest shall be the preferred
response whenever an officer witnesses or has probable cause to believe that a
person:
(a)
has committed a felony; or
(b)
has committed a misdemeanor involving harassment as defined in section one of
this chapter
(c)
has committed an assault and battery that involved harassment
The safety of the victim shall be paramount in any decision to arrest. Any officer arresting both parties must submit a detailed, written report in addition to an incident report, setting forth the grounds for dual arrest.
No law officer investigating an incident of harassment shall threaten, suggest, or otherwise indicate the arrest of all parties for the purpose of discouraging requests for law enforcement intervention by any party.
No law officer shall be held liable in any civil action regarding personal injury or injury to property brought by any party to a harassment incident for an arrest based on probable cause when such officer acted reasonably and in good faith and in compliance with this chapter.
Whenever any law officer investigates an incident of harassment, the officer shall immediately file a written incident report in accordance with the standards of the officer's law enforcement agency and, wherever possible, in the form of the National Incident-Based Reporting System, as defined by the Federal Bureau of Investigation. The latter information may be submitted voluntarily by the local police on a monthly basis to the crime-reporting unit of the criminal history systems board.
The petitioner shall be provided a copy of the full incident report at no cost upon request to the appropriate law enforcement department.
When a judge or other person authorized to take bail grants bail for any person arrested under this chapter, he shall make reasonable efforts to inform the petitioner of such release prior to or at the time of said release.
When
any person charged with or arrested for a crime involving harassment under this
chapter is released from custody, the court or the emergency response judge
shall issue, upon the request of the petitioner, a written no contact order
prohibiting the person charged or arrested from having any contact with the
petitioner, either directly or indirectly, and shall use all reasonable means
to notify the petitioner immediately of release from custody. The petitioner
shall be given at no cost a certified copy of the no contact order.
REDRAFT
JUD 685
APPEALS COURT
Messrs. Creedon and Timilty moved that the bill amended, in Section 2, in item 0322-0100 by striking out the figure “$10,175,419” and inserting in place thereof the following figure $10,616,684”
JUD 686
COMMISSIONER OF PROBATION
Mr. Creedon, Mr. Morrissey. Mr.
Barrios, Ms. Chandler, Mr. McGee, Mr. Augustus, Mr. Pacheco, Mr. Brewer, Mr.
Antonioni, Mr. Buoniconti, Mr. Baddour , Mr. Hart, Mr. Knapik, Mr. Timilty and
Mr. Tolman moved that the bill amended, in Section 2, in item 0339-1001 by
striking out the figure “$122,198,950” and inserting in place thereof the
following figure:-$130,600,000.
JUD 687
COMMUNITY CORRECTIONS
Mr. Creedon, Mr. Morrissey. Mr.
Barrios, Ms. Chandler, Mr. McGee, Mr. Augustus, Mr. Pacheco, Mr. Brewer, Mr.
Buoniconti, Mr. Baddour, Mr. Hart, Mr. Knapik, Mr. Timilty and Mr. Tolman moved
that the bill amended, in Section 2, in item 0339-1003 by striking out the
figure “$5,706,757” and inserting in place thereof the figure “$5,862,043”.
REDRAFT
JUD 688
Mr. Creedon, Ms. Wilkerson, Mr. Augustus, Mr. Pangiotakos, Ms. Spilka, Mr. Barrios, Mr. Tolman, Ms. Creem and Ms. Jehlen moved that the bill amended by adding after Section 104 the following new section: -
SECTION____
SECTION 1. Section 168A of Chapter 6 is hereby amended by inserting after the first sentence the following new sentence: – Said records shall include, where applicable, regularly updated certifications of commitment to rehabilitation, as defined in Section 168D.
SECTION 2. Chapter 6 of the General Laws is hereby amended by inserting after section 168C the following section: –
Section 168D. Probation officers, parole officers, the heads of county jails or houses of correction, or their delegates, and the superintendents of state correctional institutions, or their delegates (hereinafter collectively referred to as “supervisory officials”), shall, where appropriate, on a regular basis but at least every six months, issue a certification of commitment to rehabilitation with respect to each person under supervision, if the person has substantially complied with the behavioral requirements established by the supervisory official, including reasonable participation in treatment or other rehabilitative programs that are available to the person; but lack of reasonable access to such treatment or rehabilitative programming due to circumstances beyond the control of the supervised individual shall not compromise theeligibility of the individual for certification.
At the beginning of each period for which the individual is potentially eligible, the
supervisory official shall clearly describe to the person the requirements for certification,
including advance warning of an adverse recommendation and its basis, where such
recommendation is subject to reversal upon correction of the deficient behavior by the person. The certification shall be dated and indicate the time period covered. Supervisory officials, upon issuing such a certification, shall inform the criminal history systems board, pursuant to section 168A, so that appropriate data will be made part of a so-called “CORI report.”
SECTION 3. Section 172 of chapter 6 of the General Laws is hereby amended by
inserting after the first paragraph, as appearing in the 2004 Official Edition, a new paragraph as
follows: –
Agencies, other entities or persons granted access under clause (c) of the first sentence of the first paragraph, as appearing in the 2004 Official Edition, of this section, including local or regional housing authorities, as provided in the third sentence of the third paragraph of section168, shall receive criminal offender record information limited to cases which are either open or contain convictions, except as otherwise specifically provided by a separate statute relating to a particular agency, entity or class of entities.
Any such agency, housing authority, entity or person receiving a criminal offender record
information report and, as a result thereof, is inclined to make an adverse decision as to the individual who is the subject of the report, shall, before making the decision, give the individual a photocopy of the report and afford him an opportunity, in a private discussion, to dispute the accuracy or relevance of the report, after which the agency, housing authority, entity or person shall consider all the information before making a final decision and shall advise the individual of the decision and the reasons for it.
SECTION 4. Section 4 of chapter 151B of the General Laws is hereby amended in subdivision 9 by striking the first paragraph and inserting in place thereof the following
paragraph: --
For an employer, employment agency, employment training provider, or licensing
agency, by himself or itself or through an agent, in connection with an application for
employment, employment training or licensing or in connection with the terms, conditions, or privileges of employment, licensing or job training or the transfer, bonding, promotion, demotion, or discharge of any person or in any other matter relating to the employment of any person:
(a) to request from the person, orally or in writing, any information which consists of or relates to criminal offender record information, which shall be obtained, if at all, from the criminal history systems board, pursuant to section 172, or other applicable sections of chapter 6 of the General Laws, and all applicable regulations and certifications thereunder, or
(b) to exclude, limit or otherwise discriminate against any person (1) by reason of his failure to furnish such information orally or in writing, or (2) because his criminal offender record information consists of (i) an arrest, detention, or disposition regarding any violation of law in which no conviction resulted, or (ii) a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace, or iii) any conviction of a misdemeanor where the date of such conviction or the completion of any period of incarceration resulting there from, whichever date is later, occurred five or more years prior to the date of the person’ s application or the employer' s request for such criminal offender record information, or (3) on account of the person’s merely having a criminal record, provided however, that it shall not be a violation of this subsection if the person has a criminal record containing one or more convictions which substantially relate to the circumstances of a particular employment or job training position or licensed activity.
SECTION 5. The General Court hereby finds and declares that in addition to the state interest in safeguarding reputation and privacy of the Commonwealth’s residents, there is a compelling state interest to seal stale or otherwise misleading or unpredictive criminal records, which state interest, generally overcomes what some federal courts have found to be First Amendment interests in favor of keeping such records available to the more than 10,000 organizations which now have access to CORI.
Notwithstanding, but in addition to, the provisions of section 100C, the clerk and the probation officers of each court with criminal jurisdiction shall seal their records of all non-conviction criminal cases whose final dispositions were six years or more before the date on which this Act takes effect. As such records are sealed, the clerk and probation officers of such courts shall notify the commissioner of probation, who shall seal the appropriate case records in the probation central file.
As used in this SECTION and SECTIONS 6 and 7, a “non-conviction criminal case,” is one in which a “no bill” was returned by the grand jury; or the defendant was found not guilty by the court or jury; or a finding of “no probable cause” was made by the court; or a nolle prosequi was entered; or a dismissal was entered by the court, except where (whether or not such dismissal was preceded by a continuance without a finding) such dismissal was preceded by a term of active probation as to which the court ordered the assignment of a probation officer to whom the defendant was required periodically to report. This SECTION shall take effect on the first business day of the month that is six months after this Act is approved.
SECTION 6. In the first twelve months after this Act takes effect each clerk of any
court with criminal jurisdiction shall select and process for prospective sealing, as nearly as possible in chronological order by date of final disposition, appropriate batches of non-conviction criminal cases in which the final dispositions were less than six years before, but not more than six months after, the date on which this Act is approved.
On at least a monthly basis, but more frequently if feasible, the clerk shall prepare and
make accessible for public viewing a list of non-conviction criminal cases which will be
considered for sealing in one or more sessions of the court on or after a stated date which is at least a month after the list is posted.
The list shall be organized in alphabetical order by last name of the individuals whose case record or records will be considered and shall contain each individual’s full name, the title of the crime or crimes charged and the date or dates of their final dispositions. The list shall also contain, when applicable, a brief notation that an objection has been filed as to the sealing of a particular case, if the objector has filed with the clerk’s office, at least two weeks before the scheduled hearing date, a written objection stating a reason or reasons, which writing shall be made available upon request to the person whose record is posted for possible sealing, or to his or her attorney.
Each court is encouraged to issue a press release to local newspapers generally received by or available to persons residing within the jurisdiction of the court. Such release should announce the forthcoming sealing session and describe the means by which the list of individuals whose records will be considered for sealing may be viewed by the public and the range of final disposition dates of the cases to be considered; but the release shall not mention the identities of any of the persons whose cases are to be considered. The release should also explain that anyone who objects to the sealing of a particular case may file, at least two weeks before the session, a written objection stating the reason or reasons for the objection.
At each court session, in making its decision in each case, the court shall consider (a) the facts and arguments presented by the petitioner in favor of sealing, if any; (b) the facts and arguments presented by an objector, if any, who timely filed an objection with a reason or reasons for the objection relating to the interests of public safety or in favor of the general public interest in access to governmental records, as fostered by the First Amendment of the U.S. Constitution; and (c) the findings and declaration of the General Court as set forth in the first paragraph of SECTION 5.
If the court concludes that sealing the record would be in the interests of substantial justice and that there is a compelling state interest, which may include a public safety interest, to seal the record, which interest overcomes any objector’s assertion of contrary public safety or public access interests, the court shall order that the clerk and the probation officers in the courts in which the proceedings occurred or were initiated seal the records of the proceedings in their files and send
notice thereof to the commissioner of probation, who shall seal the case records in the probation central file. This SECTION shall take effect on the first business day of the month that is six months after this Act is approved.
SECTION 7. This SECTION shall take effect on the first business day of the month that is eighteen months after the month in which this Act is approved.
Chapter 276 of the General Laws is hereby amended by inserting after section 100C a
new section as follows:
Section 100D. Notwithstanding, but in addition to, the provisions of section 100C, on the first business day of each month the clerk of each court having criminal jurisdiction shall have prepared and shall maintain for public access a list of non-conviction criminal cases which will be considered for sealing in one or more sessions of the court on the first business day of the following month.
A “non-conviction criminal case,” as used in this section, is one in which a no bill was returned by the grand jury, or the defendant was found not guilty by the court or jury, or a finding of no probable cause was made by the court, or a nolle prosequi was entered, or a dismissal was entered by the court except where (whether or not such dismissal was preceded by a continuance without a finding) such dismissal was preceded by a term of active probation as to which the court ordered the assignment of a probation officer to whom the defendant was required periodically to report.
The list shall be organized in alphabetical order by last name of the individuals whose record or records will be considered and shall contain each individual’s full name, the title of the crime or crimes charged and the date or dates of their final dispositions. The list shall also contain, when applicable, a brief notation that an objection has been filed as to the sealing of a particular case, if the objector has, at least two weeks before the scheduled hearing date, filed with the clerk’s office a written objection, stating a reason or reasons, which writing shall be made available upon request to the person whose record is posted for possible sealing, or to his or her attorney.
Each court is encouraged to issue a press release to local newspapers generally received by or available to persons residing within the jurisdiction of the court. Such release should announce the forthcoming sealing session and describe the means by which the list of individuals whose case records will be considered may be accessed by the public and the range of final disposition dates of the cases to be considered. The release should also explain that anyone who objects to the sealing of a particular case may file with the clerk’s office, at least two weeks before the session, a written objection stating the reason or reasons for the objection.
At each court session, in making its decision in each case, the court shall consider (a) the facts and arguments presented by the petitioner in favor of sealing, if any; (b) the facts and arguments presented by an objector, if any, who timely filed an objection with a reason or reasons for the objection relating to the interests of public safety or in favor of the general public interest in access to governmental records, as fostered by the First Amendment of the U.S. Constitution; and (c) the findings and declaration of the General Court as set forth in the first paragraph of SECTION 5.
If the court concludes that sealing the record would be in the interests of substantial justice and that there is a compelling state interest, which may include a public safety interest, to seal the record which overcomes the general public safety or public access interests asserted by an objector, the court shall order that the clerk and the probation officers in the courts in which the proceedings occurred or were initiated seal the records of the proceedings in their files and send notice thereof to the commissioner of probation, who shall seal the case record in the
probation central file.
SECTION 8. This SECTION shall take effect on the first business day of the month that is six months after the month in which this Act is approved.
Chapter 276 of the General Laws is hereby amended by inserting after section 100D, a new section as follows --
Section 100E. Notwithstanding but in addition to the provisions of section 100B of chapter 276, upon final disposition of a person’s juvenile delinquency proceeding, and
completion of any court-ordered disposition, the person may petition the court for an order directing purging of all law enforcement, court activity and probation records leading and related to the person’s proceedings in juvenile court. Records shall be considered purged when they are removed and destroyed and leave no trace of a person’s identifying information. Any person on his own behalf or by his attorney may seek to have his delinquency record or records purged by the juvenile court by filing a petition upon the completion of, or otherwise after the delinquency proceedings and/or when the requirements of the court’s disposition for the juvenile has been met, whichever is later.
A person whose records have been purged may consider the purged case never to have occurred and may so reply upon any inquiry. In any situation where a clerk is asked whether a purged record exists, the clerk shall respond that no such record exists.
There shall be a rebuttable presumption in favor of purging records of juveniles who have
been exonerated, whose cases have been dismissed with prejudice, a nolle prosequi entered, terminated due to absence of evidence, or when the court takes judicial notice that the person’s arrest has been made without probable cause or for constitutionally protected conduct.
In making its determination whether a person’s law enforcement and juvenile court activity records should be purged, the court shall consider the following factors: severity of the offense, probable adverse consequences to the person as a result of maintenance of the record, any specific public
safety need to maintain such a record, the person’s personal history and behavior since the juvenile proceedings were commenced and/or disposed of that provides indicia of rehabilitation.
If the Court orders that a record be purged, it shall circulate its order to purge all personal, identifying information from the person’s record, which may include police booking reports or records, fingerprint records, photographs, and all court activity records, probation records, electronically stored records of any nature or description relating to the person’s juvenile court proceeding, to local, public housing, public school, college or University police agencies, the MBTA police, the state police, the office of the Commissioner of Probation, the Criminal History Systems Board, as well as state and federal agencies, officials or institutions known to collect and have information pertaining to delinquency or youthful offender charges. Data from such records may be kept solely for the purpose of statistical and administrative analysis of the agency holding such records. All agencies shall purge records within 30 days of receipt of the Court order.
Persons prosecuted as Youthful Offenders pursuant to Section 54 of Chapter 119 of the General Laws, may similarly petition the Court for purging records containing their identity from court, police and probation agencies, as well as indictments not resulting in a youthful offender trial, where there has been a finding of not delinquent and/or not guilty and the person has been declared not a youthful offender.
The juvenile court shall inform a juvenile of his right to petition for purging or sealing his records as provided for by law. The clerk of the juvenile court shall provide juveniles with a packet providing information on sealing and purging juvenile records written in plain language which shall include a sample petition.
SECTION 9. This SECTION shall take effect on 18 month after this Act is approved.
Notwithstanding but in addition to section 100C of chapter 276 of the General Laws and
SECTIONS 5, 6 and 7 of this Act, said chapter 276 is hereby amended by inserting the
following section: --
Section 100F. Upon a criminal court’s final disposition of a case in which a “no bill” was returned by the grand jury, or the defendant was found not guilty by the court or jury or a finding of “no probable cause” was made by the court, the court or probation officer shall advise the defendant that he has the opportunity to obtain, fill out and file with the clerk’s office a petition to have the case purged, which, as defined in section 167 of chapter 6, means to have all information about the case removed from the criminal offender record information system, such that there is no trace of the information removed and no indication that said information was removed.
When a petition for purging comes on for hearing before the court, the judge shall hear whatever competent and relevant evidence or argument that may be presented by the petitioner, his attorney, the district attorney or other persons reasonably involved. The judge shall then make his decision after careful consideration of at least the following factors:
(1) whether there has been a mistaken identity;
(2) any specific public safety need to maintain, or to purge, the record;
(3) where the court takes judicial notice that the person was arrested without probable
cause or for constitutionally protected conduct;
(4) any actual or probable adverse consequences to the person as a result of maintenance of the record even if sealed under the provisions of section 100B;
(5) the person’s personal history and behavior before, during and after the criminal proceedings took place.
A person whose record had been purged may consider the purged case never to have occurred and may so reply upon any inquiry. In any situation where a clerk or other court or criminal justice official is asked whether, as to a particular individual, a purged record exists, and the official knows that the case has been purged, the official shall respond that no such record exists.
SECTION 10. Resolved,
That a special commission consisting of four members of the Senate to be appointed by the Senate President, one of whom shall be the Senate chairman of the judiciary committee and one of whom shall be any other Senator, and two appointees shall be non-legislators, four members to be appointed by the Speaker of the House, one of whom shall be the House chairman of the judiciary committee and one of whom shall be any other Representative, and two shall be non-legislators, the secretary of public safety or his designee, the secretary of health and human services or his designee, the chairman of the Massachusetts District Attorneys Association or his designee, a designee of the Committee for Public Counsel Services, a designee of Massachusetts Correctional Legal Services and four members to be appointed by the Governor, at least one of whom shall be a representative from Massachusetts Alliance to Reform CORI and least one of whom shall be directly affected by the CORI system, for the purpose of studying and issuing a report with recommendations the effect of on recidivism in the Commonwealth, specifically moving from a 10 year sealing on misdemeanors and 15 year sealing on felonies to 3 year on misdemeanors and 7 year sealing on felonies.
JUD 689
COURT SECURITY PROGRAM
Messrs. Creedon and Timilty moved
that the bill amended, in Section 2, in item 0330-3200 by striking out the
figure “$55,839,031” and inserting in place thereof the following figure:-
“58,486,002”
JUD 690
DISTRICT COURT DEPARTMENT
Mr. Creedon moved that the bill
amended, in Section 2, in item 0332-0100 by striking the figure “$41,988,423”
and inserting in place thereof the following figure: - $42,056,703
JUD 691
REGIONAL CLERKS FOR DISTRICT COURTS
Messrs. Creedon and Timilty moved that the bill amended, in Section 2, by inserting after line item 0332-0100 the following new line item:
0332-0101 For one additional clerk magistrate for each
region of the District Court to assist with the increase in cases as a result
of primary seat belt enforcement…………………………………………………………………….…$546,240
JUD 692
PILOT PROGRAM TO PROTECT COURTS FROM
BIOHAZARDS
Mr. Creedon moved
that the bill amended, in Section 2, in item 0330-0300, by inserting after the words “torch of the
; provided further, that not less
than $138,000 shall be expended on a pilot program utilizing non-ionizing
energy and non-chemical sterilent, high-intensity decontamination technology to
protect court facilities and employees from potential biohazards delivered
through the mail,
;and in said
item by striking out the figures “$131,912,460” and inserting in place thereof
the figures “$132,050,460”.
REDRAFT
JUD 693
Mr. Creedon moved that the bill amended, in Section 2, in item 0331-0100 by striking the figure “$22,520,733” and inserting in place thereof the following figure: - $22,657,293
Mr. Creedon further moves to amend the bill by inserting at the end thereof the following new section:
SECTION____. Section 5 of Chapter 221 of the General Laws, as appearing in the 2002 Official Edition, is hereby amended in line 14 by deleting “Plymouth, 6 assistant clerks” and inserting in place thereof “Plymouth, 8 assistant clerks”.
JUD 694
TIMELY GUARDIANSHIPS
Messrs. Tarr, Lees, Tisei, Knapik, Hedlund and Brown moved that the bill be amended by inserting at the end the following new section:-
“SECTION ___. Section 6A of Chapter 201 of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by adding, after subsection (h) the following new subsection:
(i) A petition pursuant to subsection (a) above may be filed, and the court may rule on such petition, not more than 90 days prior to the eighteenth birthday of the individual who is the subject of the petition, provided that any guardianship so established shall not take effect prior to that birthday.”
JUD 695
TRIAL COURTS
Messrs. Hedlund, Lees, Tisei, Tarr,
Knapik, Brown moved that the bill be amended, in Section 2, in item 0330-0300,
by inserting at the end thereof the following: “provided further that the
immigration status of every defendant should be confirmed at the arraignment
stage of a court proceeding.”
JUD 696
CLERK RETIREMENT STATUS
Mr. Antonioni moved that the bill be amended by inserting, after Section 105, the following new Section:-
“Section XX. Subsection (2)(g) of section 3 of chapter 32 of the General Laws is hereby amended by inserting after the words “employees of the trial court of the commonwealth who hold the position of” the following words:-
“clerk-magistrate, assistant
clerk-magistrate, clerk of court, assistant clerk of court, register of
probate,”.
JUD 697
Mr. Rosenberg moved that the bill be amended by inserting, after Section__, the following new Sections:-
SECTION ___. The first paragraph of section 10 of chapter
218 of the General Laws, as appearing in the 2004 Official Edition, is hereby
amended by striking out the lines “district court of
SECTION__.. The second paragraph of
said section 10 of said chapter 210, as so appearing, is hereby amended by
inserting after the line “district court of central
REDRAFT
JUD 698
Mr. Antonioni and Ms. Chandler moved that the bill be amended, in Section 2, in item 0339-1001, by inserting at the end thereof the following:-
“; and provided further, that not less than $100,000 shall be expended for the purpose of funding the positions of court services coordinator (1) and assistant court services coordinator (1), at the Central Massachusetts Probation Training Authority located in the town of Clinton”
And further moved to amend the item by striking out the figure “$122,198,950” and inserting in place thereof the following figure:- “$122,298,950”.
JUD 699
PERMANENCY MEDIATION
Mr. Rosenberg moved that the bill
be amended, in Section 2, in item 0330-0441, by striking out the figure
$500,000” and inserting in place thereof the following figure:- “540,000”.
JUD 700
COURTS
Mr. Baddour moved that the bill be amended by inserting, after Section XX, the following new Section:-
“ SECTION 44A.
Section 1 of chapter 218 of the General Laws, as appearing in the 2004
Official Edition, is hereby amended by striking out, under the caption “
SECTION 44B. Said section l of said chapter 218, as so appearing, is hereby further amended by striking out, under the caption “Essex”, the fourth paragraph and inserting in place thereof the following paragraph:-
The district court of eastern Essex, held at Gloucester; Essex, Gloucester, Hamilton, Ipswich, Rockport, Topsfield and Wenham.”
JUD 701
JUVENILE COURT EXPANSION
Mr. Morrissey moved that the bill amended, in Section 2, by inserting after line item 0337-0002 by inserting following line item:-
0337-0003 For expenses associated with the expansion of the juvenile
court, shall be expended for lease costs, furnishings and equipment for a juvenile
court facility to be located within the jurisdictional area of the Quincy
District Court………..$1,055,000.
JUD 702
MEDIATION WORKS INCORPORATED
Messrs. Morrissey, Hedlund and Joyce moved that the bill be amended, in Section 2, in item 0330-0410 by striking out the figure “$62,811” and inserting in place thereof the following new figure:- “75,000”.
Mr. Morrissey further moved that
the bill be amended, in Section 2, in item 0330-0410 by striking out the figure
“$943,189” and inserting in place thereof the following new figure:- “$955,378”.
REDRAFT
JUD 703
Mr. Morrissey and Ms. Creem moved that the bill be amended by inserting at the end thereof the following new section:-
SECTION . Section 23B of Chapter 217 of the General Laws is hereby amended by inserting in line 16 by inserting after the words “Middlesex, 3 deputy assistants” the following: - “Norfolk, 1 administrative deputy assistant. Plymouth, 1 administrative deputy assistant.”
REDRAFT
JUD 704
STATUTORY CHANGE FOR JUDICIAL OFFICES
Mr. Morrissey moved that the bill be amended by adding at the end thereof the following new sections:-
SECTION . Section 14 of chapter 185 of the General Laws, as so appearing, is hereby amended by striking out, in line 2, the words “seventy-five and forty-seven hundredths percent” and inserting in place thereof the following words:— 81.57 per cent.
SECTION . Section 9A of chapter 185C of the General Laws, as so appearing, is hereby amended by striking out, in lines 2 and 3, the words “seventy-five and forty-seven hundredths percent” and inserting in place thereof the following words:— 81.57 per cent.
SECTION . Section 22 of chapter 211 of the General Laws, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence: The chief justice shall receive a salary of $151,239 and each associate justice shall receive a salary of $145,984 and the chief justice and each associate justice shall annually receive from the commonwealth upon the certificate of the chief justice the amount of expenses incurred by each of them in the discharge of his duties.
SECTION . Section 2 of chapter 211A of the General Laws, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence: The chief justice shall receive a salary of $140,358 and each associate justice shall receive a salary of $135,087 and the chief justice and each associate justice shall annually receive from the commonwealth upon the certificate of the chief justice the amount of expenses incurred by each of them in the discharge of his duties.
SECTION . Section 4 of chapter 211B of the General Laws, as so appearing, is hereby amended by striking out the first 3 paragraphs and inserting in place thereof the following 3 paragraphs: —
The salaries of the justices of the trial court shall be paid by the commonwealth. Each associate justice shall receive a salary of $129,694.
The chief justice of the several departments shall receive a salary of $135,124.
The chief administrative justice shall receive a salary of $140,358.
SECTION . Section 35A of chapter 217 of the General Laws, as so appearing, is hereby amended by striking out, in lines 2 and 3, the words “seventy-five and forty-seven hundredths percent” and inserting in place thereof the following words:— 81.57 per cent.
SECTION . Section 53 of chapter 218 of the General Laws, as so appearing, is hereby amended by striking out, in lines 9 and 10, the words “seventy-five and forty-seven hundredths percent” and inserting in place thereof the following words:— 81.57 per cent.
SECTION . Section 58 of said chapter 218, as so appearing, is hereby amended by striking out, in line 89, the words “seventy-five and forty-seven hundredths percent” and inserting in place thereof the following words:— 81.57 per cent.
SECTION . Section 79 of said chapter 218, as so appearing, is hereby amended by striking out, in line 2, the words “seventy-five and forty-seven hundredths percent” and inserting in place thereof the following words:— 81.57 per cent.
SECTION . The third paragraph of section 94 of chapter 221 of the General Laws, as so appearing, is hereby amended by striking out, in lines 18 and 19, the words “seventy-five and forty-seven hundredths and inserting in place thereof the following words: — 81.57 per cent.
SECTION . Sections XX, XX, XX, XX, XX, XX, XX, XX, XX and XX shall take effect on January 1, 2006.
JUD 705
MANDATORY MINIMUM SENTENCING REFORM
Ms. Creem and Mr. O’Leary and Mr. Tisei moved that the bill be amended by adding the following sections:-
SECTION ___. Section 32H of chapter 94C, as appearing in
the 2004 Official Edition, is hereby amended by striking out, in line 13, the
word “parole,” and is hereby further amended by inserting at the end of said
section the following paragraph:-
Notwithstanding any general or special law to the contrary, a
person convicted of violating any provisions of sections 32, 32A, 32B, 32E,
32F, and 32J of chapter 94C of the General, who is serving a sentence where
two-thirds of the maximum term of imprisonment imposed is less than the
mandatory minimum sentence required under that section shall be eligible for
parole after serving two-thirds of the maximum term of imprisonment imposed.
SECTION ___. Notwithstanding the provisions of sections 32,
32A, 32B, 32E, 32F, and 32J of chapter 94C of the General Laws, or any other
general or special law to the contrary, persons serving mandatory minimum
sentences for violations of the above referenced sections as of
JUD 706
PROVIDING PROTECTION AGAINST COMPELLED
DISCLOSURE OF CERTAIN INFORMATION BY THE NEWS MEDIA
Ms. Creem moved that the bill be amended by adding the following section:-
SECTION ___. Chapter 233 of the General Laws is hereby amended by adding the following section:-
Section 84. (a) For the purposes of this section, the following terms shall have the following meanings:-
“Covered person”, a person who engages in the gathering of news or information and has the intent, at the beginning of the process of gathering news or information, to disseminate such news or information to the public.
News or information”, written, oral, pictorial, photographic or electronically recorded information or communication concerning local, national or worldwide events, or other matters.
“News media”, shall include: a newspaper; a magazine; a journal or other periodical; radio; television; any means of disseminating news or information gathered by press associations, news agencies or wire services, including dissemination to the news media such as identified herein; or any printed, photographic, mechanical or electronic means of disseminating news or information to the public.
(b) (1) Except as provided in subsection (c), no entity of the judicial, legislative or executive branch of the commonwealth with the power to issue a subpoena or provide other compulsory process shall compel any covered person, who is providing or has provided services for the news media, to disclose:
(i) the source of any news or information procured by such covered person, or any information that would tend to identify such source, while providing services for the news media, whether or not such source has been promised confidentiality; or
(ii) any news or information procured by the covered person, while providing services for the news media, that is not itself communicated in the news media, including any: notes; outtakes; photographs or photographic negatives; video or sound tapes; film or; other data, irrespective of its nature, that is not itself communicated in the news media.
(2) The protection from compelled disclosure described in subparagraph (1) shall apply to a supervisor, employer or any person assisting a covered person to whom said subparagraph (1) applies.
(3) Any news or information obtained in violation of this section shall be inadmissible in any action, proceeding or hearing before any entity of the judicial, legislative or executive branch of the commonwealth.
(c) A state entity may not compel a covered person to testify or produce any document in any proceeding or in connection with any issue arising under state law unless: (i) disclosure of the identity of a source is necessary to prevent imminent and actual harm to public security from acts of terrorism; (ii) compelled disclosure of the identity of a source would prevent such harm; and (iii) the harm sought to be redressed by requiring disclosure clearly outweighs the public interest in protecting the free flow of information.
(d) (1) A court may compel disclosure of news or information described in clause (ii) of paragraph (1) of subsection (b) and protected from disclosure under said subsection (b) if the court finds, after providing notice and an opportunity to be heard to the person or entity from whom the news or information is sought, that the party seeking the news or information has established by clear and convincing evidence that:
(i) the news or information is critical and necessary to the resolution of a significant legal issue before an entity of the judicial, legislative or executive branch of the commonwealth that has the power to issue a subpoena;
(ii) the news or information could not be obtained by any alternative means; and
(iii) there is an overriding public interest in the disclosure.
(2) A court may not compel disclosure of the source of any news or information described in clause (i) of paragraph (1) of subsection (b) and protected from disclosure under said subsection (b).
(e) The publication by the news media or the dissemination by a covered person while providing services for the news media of a source of news or information, or a portion of the news or information, procured in the course of pursuing professional activities shall not constitute a waiver of the protection from compelled disclosure that is described in subsection (b).
JUD 707
POST RELEASE SUPERVISION
Ms. Creem moved that the bill be amended by adding the following sections:-
SECTION ___. Section 32H of chapter 94C, as so appearing,
is hereby amended by striking out, in line 13, the word “parole,” and is hereby
further amended by inserting at the end of said section the following
paragraph:-
Notwithstanding any general or special law to the contrary, a
person convicted of violating any provisions of sections 32, 32A, 32B, 32E,
32F, and 32J of chapter 94C of the General, who is serving a sentence where
two-thirds of the maximum term of imprisonment imposed is less than the
mandatory minimum sentence required under that section shall be eligible for
parole after serving two-thirds of the maximum term of imprisonment imposed.
SECTION ____. Notwithstanding the provisions of sections 32,
32A, 32B, 32E, 32F, and 32J of chapter 94C of the General Laws, or any other
general or special law to the contrary, persons serving mandatory minimum
sentences for violations of the above referenced sections as of
SECTION ___. Chapter 279 of the General Laws, as so
appearing, is hereby amended by inserting after section 27 the following
section following section:—
Section 28. For all sentences to incarceration for a
period of twelve months or more which are imposed in accordance with the
sentencing guidelines as established in this chapter, there shall be imposed a
period of post‑incarceration supervision. The period of post‑incarceration
supervision shall be imposed as follows: a period of six months for a sentence
with a maximum term greater than or equal to 12 months but less than 30 months;
a period of 12 months for a sentence with a maximum greater than or equal to 30
months but less than 60 months; and a period of 24 months for a sentence with a
maximum term greater than 60 months The
total term of incarceration for the offense plus any additional commitment for
a violation of a condition of post‑incarceration supervision that does
not otherwise constitute a new offense, shall not be greater than the maximum
term fixed by statute for the governing offense. During the period of post‑incarceration
supervision, the prisoner shall be subject to the supervision of the Parole
Board under such terms and conditions as established by the Board.
The post‑incarceration supervision period shall be
deemed completed if the prisoner completes the sentence to incarceration while
on parole, if the prisoner is granted a certificate of termination of sentence
pursuant to G.L. c. 127, § 130A, if the prisoner is subject upon release from
custody to lifetime parole pursuant to section 133C of chapter 127, or if upon completion
of the sentence the prisoner is immediately committed to a sentence of
incarceration, to the custody of any other state or federal authority, or to
the custody of immigration authorities. The post‑incarceration
supervision shall be stayed for any period the prisoner is in custody pursuant
to any order of custody under chapter 123A. The post‑incarceration
supervision period shall be deemed completed upon commitment pursuant to
section 14 of chapter 123A. In all other circumstances, the period of post‑incarceration
supervision shall commence upon discharge from the sentence.
During the period of post‑incarceration supervision,
the prisoner shall be subject to the jurisdiction of the parole board in
accordance with section 130 of chapter 127. The prisoner may be supervised in
another jurisdiction in accordance with sections 151A through 151L of chapter
127 and shall be considered on parole for the purposes of such supervision. By
a majority vote of a panel of the parole board after a hearing and for good
cause, the parole board may terminate the period of post‑incarceration
supervision at any time before completion.
An individual who violates a condition of post‑incarceration
supervision shall be subject to the provisions of section 149 of chapter 127.
Upon a first violation, the prisoner may be incarcerated for a period no
greater than two months or the maximum remaining period of post‑incarceration
supervision, whichever is less, if such violation does not otherwise constitute
a criminal offense. Upon a second violation, the prisoner may be incarcerated
for a period no greater than six months or the maximum remaining period of post‑incarceration
supervision, whichever is less, if such violation does not otherwise constitute
a criminal offense. Upon a third or subsequent violation the prisoner, may be
incarcerated for a period no greater than twelve months or the maximum
remaining period of post‑incarceration supervision, whichever is less, if
such violation does not otherwise constitute a criminal offense. If such
violation otherwise constitutes a criminal offense, said period of
incarceration shall be served on and after any sentence received for commission
of the new offense. In the event that the prisoner has been convicted of
more than one offense, post‑incarceration supervision may be imposed if
the maximum sentence on all offenses has not been served.
Notwithstanding Section 23 of Chapter 279, where the
defendant is sentenced to the house of correction, the total term of
incarceration for any offense plus any additional commitment for violation of a
condition or conditions of post‑incarceration supervision pursuant to
section 17 of chapter 211G shall not exceed the longest term fixed by law for
the punishment of the crime of which the prisoner has been convicted or if the
defendant is serving a sentence after being convicted of only one offense, two
and one half years, whichever is less.
SECTION ___. Section 25 of chapter 279, as so appearing, is
hereby amended by inserting after the word “sentenced” in line 8 the following
words:— in addition to two years of post-release supervision to be served when
the habitual offender is released from prison, notwithstanding that the
combined total of years of the term of imprisonment and the post-release supervision
exceeds the maximum term fixed by law. During the period of post-release
supervision, the offender shall be under the jurisdiction and supervised by the
parole board pursuant to the provisions of sections 128 through 151 of chapter
127.
SECTION ___. Section 130 of chapter 127 of the General
Laws, as so appearing is hereby amended by striking out the first sentence and
inserting in place thereof the following three sentences:— No prisoner shall be
granted a parole permit merely as a reward for good conduct but only if the
parole board is of the opinion that there is a reasonable probability that, if
such prisoner is released, in light of appropriate conditions and community
supervision, he will live and remain at liberty without violating the law and that
his release is compatible with the welfare of society. In making this
determination, the board shall consider whether, during the period of
incarceration, the prisoner has participated in available work opportunities
and education or treatment programs, and demonstrated good behavior. The board
shall also consider whether risk reduction programs made available through
collaboration with criminal justice agencies would minimize the probability of
the prisoner re‑offending once released.
JUD 708
CIVIL STATUTE OF LIMITATIONS FOR SEX
OFFENCES
Ms. Creem and Messrs. O’Leary, Timilty and Tisei moved that the bill be amended by adding the following section:-
SECTION ___. Section
4C of Chapter 260 of the General Laws, as so appearing, shall be stricken in
its entirety and inserted in place there of the following:
Section 4C. Actions for assault and battery alleging
the defendant sexually abused a minor may be commenced at any time after the
acts alleged to have caused an injury or condition. Actions for
negligence alleging that the defendant negligently supervised a third person
who sexually abused a minor, or that the defendant’s conduct caused or
contributed to the sexual abuse of a minor by a third person, may be commenced
at any time after the acts alleged to have caused an injury or condition.
For purposes of this section, “sexual abuse” shall mean the commission of any
act against a minor as set forth in section 13 B, 13F, 13H, 13L, 22, 22 A, 23, 24,
or 24 B of chapter 265, or section 35A of chapter 272.
JUD 709
WITHDRAWN
JUD 710
TORT LIABILITY FOR CERTAIN CHARITABLE
ORGANIZATIONS
Ms. Creem moved that the bill be amended by adding the following section:-
SECTION ___. Chapter 231 of the General Laws, as so
appearing, is hereby amended by striking out section 85K, and inserting in
place thereof the following new section:-
Section 85K. It shall not constitute a
defense to any cause of action based on tort brought against a corporation,
trustees of a trust, or members of an association that said corporation, trust,
or association is or at the time the cause of action arose was a charity;
provided, that if the tort was committed in the course of any activity carried
on to accomplish directly the charitable purpose of such corporation, trust, or
association, liability in any such cause of action shall not exceed the sum of
twenty thousand dollars exclusive of interest and costs. Notwithstanding
any other provision of this section, a charitable corporation, trust, or
association shall be considered to have conclusively waived any limitation of
liability for any tort to the extent that such charitable corporation, trust or
association has insurance covering the liability for such charitable
organization for any tort. The amount of damages in any such case shall
not exceed the aggregate of twenty thousand dollars plus the limits of coverage
available under any insurance policy, and the courts shall abate any verdict in
any such action to the extent that it exceeds such aggregate amount.
Notwithstanding any limitations existing under Massachusetts
law, the liability of charitable corporations, trustees of charitable trust, or
members of charitable associations shall be unlimited and not be subject to the
limitations set forth in this section or any provision under Massachusetts law
if the tort was committed 1) in the course of activities primarily commercial
in character even though carried on to obtain revenue to be used for charitable
purposes, or 2) in the course of criminal conduct or in the course of
activities designed, intended, or which had the effect, to conceal
criminal conduct.
The provisions of this section shall be effective immediately
and shall be applicable to (a) all tortious conduct whether
occurring prior or subsequent to the effective date of this section, and
(b) all pending actions for which final judgment has not entered.
JUD 711
EASTERN DISTRICT ATTORNEY'S OFFICE
Messrs. McGee and Baddour moved that the bill be amended, in Section 2, in item 0340-0300 by striking the figure “$7,738,780” and insert in place thereof the following:- “
$8,181,987”
JUD 712
CHSB
Ms. Wilkerson and Mr. Creedon moved that the bill amended, in Section 2, in item 8000-0110 by striking out the wording and inserting in place thereof the following wording:-
“For the operation of the criminal
history systems board; provided, that the board shall fund 1 administrative
assistant who shall be employed in the victim services unit of the board for
the continued and enhanced operation of the post-conviction victim and witness
certification program operated pursuant to chapter 258B and clause (c) of the
first paragraph of section 172 of chapter 6 of the General Laws; provided
further, that said victim services position shall be in addition to any such
positions approved as of February 1, 1998; provided further, that not more than
$75,000 shall be expended for the purpose of enabling local housing authorities
access to criminal offense information when qualifying applicants for
state-assisted housing; provided further, that the board shall, not later than
September 30, 2006, adopt regulations to: a) assure that the distribution of
criminal offender record information relates to the individual for whom the
request has been made, b) afford practical assistance in corrections to a
criminal offender record information report to an individual who submits
evidence to the board that one or more charges in a criminal offender record
information report distributed by the board and purportedly relating to that
individual, in fact, do not relate to that individual, c) limit the
distribution of criminal offender record information to conviction data and
data regarding any pending criminal charge, except as otherwise authorized by
law, and d) require that any entity other than a criminal justice agency that
receives a criminal offender record information report from the board as to an
individual and, as a result of that report, is inclined to make an adverse
decision as to the individual, shall, before making a final decision, afford
the individual an opportunity to dispute the accuracy and relevance of the
criminal offender record information report; and provided further, that not
later than January 1, 2007, the board shall file a report with the house and
senate committees on ways and means detailing the steps the board has taken to
implement the preceding proviso and the success of those steps in improving the
accuracy of the criminal offender record information system”