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Amicus Announcements from September 2018 to August 2019

From time to time, the Supreme Judicial Court solicits amicus ("friend of the court") briefs or memoranda from parties not directly involved in a case, but that may have an interest or opinion about a case pending before the court.

Table of Contents

File an Amicus Brief

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.

Interested parties may file their briefs in the Supreme Judicial Court Clerk's Office for the Commonwealth.

November 2018

Wayne Chapman vs. Commonwealth

Whether, in a sexually dangerous person case, the Commonwealth should be permitted to proceed to trial notwithstanding that both of the qualified examiners have opined that the individual is not sexually dangerous; whether this court should overrule or modify its holding in Johnstone, petitioner, 453 Mass. 544 (2009).  (This case will be paired for argument with SJC‑12537, Matter of Wayne Chapman.)

Commonwealth vs. Ezara Wentworth

1.  Whether the court’s holding in Commonwealth v. Beal, 474 Mass. 341 (2016) – declaring unconstitutional the residual clause of the Massachusetts armed career criminal act, see G. L. c. 269, § 10G; G. L. c. 140, § 121 (“otherwise involves conduct that presents a serious risk of physical injury to another”) – applies retroactively to cases on collateral review.

2.  Whether one or more of the possible predicate offenses in this case (assault and battery, resisting arrest, and unlawfully carrying a dangerous weapon) necessarily qualifies as a violent crime under the force clause of the statute, i.e., “has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another.”

Chelsea Housing Authority vs. Martin J. Scafidi, P.C. & another

1.  In an action brought by an organization against an accounting firm that conducted its audits, based on the firm’s allegedly negligent failure to uncover fraudulent and criminal financial misconduct by the organization’s executive director, whether the common law doctrine of in pari delicto barred recovery against the firm; whether the court should recognize an exception to the in pari delicto doctrine where an organization seeks to recover damages from its auditor for negligently failing to detect fraud committed by members of senior management.

2.  Whether, and if so how, G. L. c. 112, § 87A 3/4, applies in the circumstances of this case.

Commonwealth vs. Denver Petit-Homme

1.  Whether the defendant, who faces deportation, should have been permitted to withdraw his admission to sufficient facts where the judge properly advised the defendant of the immigration consequences of his admission pursuant to Mass. R. Crim. P. 12 (c) (3) (A) (iii) (b) but failed to also give the defendant the immigration warning required by G. L. c. 278, § 29D, and Mass. R. Crim. P. 12 (c) (3) (A) (iii) (a).

2.  Whether a defendant who receives the warning required by rule 12 (c) (3) (A) (iii) (b) can be prejudiced by the failure also to receive the warning required by the statute and by rule 12 (c) (3) (A) (iii) (a); whether, despite having received the warning under rule 12 (c) (3) (A) (iii) (b), a defendant who fails to receive the statutory warning is nevertheless entitled as a matter of right to withdraw his admission.  See G. L. c. 278, § 29D (“If the court fails so to advise the defendant . . . the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant withdraw the plea . . . or admission”).

3.  Whether the offenses to which the defendant admitted sufficient facts – assault with a dangerous weapon and threatening to commit a crime – presumptively mandate removal from the United States under Federal immigration law; what are examples of offenses that do and do not presumptively mandate removal.

Commonwealth vs. Stanley Jeannis

Whether the seizure of a plastic bag containing illegal narcotics from the defendant’s person occurred as a result of a strip search or a body cavity search; whether the Commonwealth satisfied its burden of demonstrating that the bag was held entirely within the cleft between the defendant’s buttocks and that no portion of the bag was within the defendant’s rectum.

Commonwealth vs. Suzanne Hardy

Whether the evidence was sufficient to prove that the defendant’s conduct was “wanton or reckless,” so as to support her convictions of involuntary manslaughter and reckless endangerment of a child; that the defendant’s conduct “caused” the victim’s death, as required to prove involuntary manslaughter; and that the defendant was subjectively aware of and consciously disregarded the risk to the victim, as required to prove reckless endangerment of a child, where the defendant improperly restrained the her four-year-old nephew in the backseat of her automobile and then drove in an inattentive and dangerous manner, leading to the motor vehicle accident that caused the boy’s death.

Commonwealth vs. Jason J. Palermo

Whether the admission into evidence, over the defendant’s objection, of a certified docket sheet revealing the alleged coventurer’s guilty plea and resulting sentence, for purposes of impeachment of the defendant, violated the hearsay rule, violated the defendant’s constitutional right to confrontation (and the related principle that a coventurer’s plea is not admissible as substantive evidence of the guilt of a criminal defendant), or created a danger of unfair prejudice that substantially outweighed the probative value of the evidence.

Commonwealth vs. Alexander Rodriguez

Where a defendant has been convicted of possession of a large capacity weapon or large capacity feeding device in violation of G. L. c. 269, § 10 (m), whether the statute requires a judge to sentence the defendant to a minimum of not less than two and one-half years in state prison or whether a minimum sentence of not less than one year is lawful.

A Juvenile vs. Commonwealth

Where a juvenile was eleven years old at the time a delinquency complaint issued against him in the Juvenile Court; chapter 69 of the Acts of 2018, An Act Relative to Criminal Justice Reform, subsequently amended chapter 119 of the General Laws to raise the minimum age to be determined a "delinquent child" from seven to twelve years old; and the juvenile moved to dismiss the complaint on the basis of the amendments; whether the 2018 amendments to G. L. c. 119, §§ 52, 54, apply retroactively to the juvenile.

October 2018

Frederic N. Halstrom vs. Marilyn P. Dube & another

1.  Whether, as a general rule, the statute of limitations on a law firm’s action to recover fees from a former client who terminated a contingent fee agreement should begin to run on the date the law firm is discharged, on the date the contingency occurs (if it does), or on some other date.

2.  Whether any proposed rule would conflict with G. L. c. 231, § 60I; Mass. R. Prof. C. 1.5; or any other applicable legal or ethical requirement.

Commonwealth vs. Zachariah J. Larose

Whether a single crossing of the “fog line” (that is, the solid white line dividing the travel lane from the shoulder), for two to three seconds, constitutes a marked lanes violation under G. L. c. 89, § 4A, and justifies a motor vehicle stop, where there is no indication that the crossing of the fog line was unsafe.

Rebel Restaurants, Inc. d/b/a Jerry Remy’s vs. Alcoholic Beverages Control Commission

Whether the ABCC properly found that the plaintiff violated 204 Code Mass. Regs. § 2.08, after the Legislature repealed G. L. c. 138, § 25A (b), and the regulation was never re-promulgated. (The case will be paired for oral argument with Craft Beer, LLC vs. Alcoholic Beverages Control Commission, No. SJC-12547.)

Commonwealth vs. Arismendy Espinal

Whether the trial judge wrongly denied the defendant’s request for a collective voir dire question regarding the defendant’s inability to speak English.

Felice Gammella vs. P.F. Chang’s China Bistro, Inc.

Whether a plaintiff alleging a violation of the Wage Act and regulations promulgated thereunder may bring a class action without satisfying the requirements of Mass. R. Civ. P. 23, as amended, 471 Mass. 1491 (2015), where G. L. c. 151, § 20, and G. L. c. 149, § 150, expressly provide that an aggrieved employee may bring an action “on his own behalf, or for himself and for others similarly situtated.”

Whether the complaint was wrongly dismissed as moot on the ground that the plaintiff had been afforded complete relief as to his individual claims, where the defendant tendered a settlement offer that the plaintiff did not accept.

Impounded Case

Whether a hearing examiner can classify an offender as a level two offender – thereby making his registration information publicly available on the Internet, see G. L. c. 6, §§ 178D and 178K, as amended by St. 2013, c. 38, §§ 7 and 9 – based solely on a finding that the offender poses a moderate risk of re-offense, without also making a finding that the degree of dangerousness posed to the public by this offender is such that a public safety interest is served by having his registration information be publicly available.

Ben Branch & others vs. Commonwealth Employment Relations Board

1Whether the imposition of compulsory agency or service fees, pursuant to G. L. c. 150E, on public employees who choose not to become union members, but who may benefit from collective bargaining, violates the United States Constitution.

2.  Whether G. L c. 150E, § 12, impermissibly burdens the constitutional rights of non-union public employees by requiring them to apply for a rebate of certain fees rather than requiring affirmative consent to the payment of fees.

3.  Whether, by permitting a union to be the exclusive employee representative with respect to bargaining on the terms and conditions of employment, but failing to require that non-union public employees have a voice and a vote with respect to those terms and conditions, G. L. c. 150E impermissibly coerces non-union member public employees to discontinue the free exercise of their First Amendment rights.

Commonwealth vs. Cristopher Rivera

Where the defendant was present and briefly participated in an altercation between a codefendant and the victim, during which the codefendant fatally stabbed the victim, whether the defendant’s false statement to the police – saying that he was not present during the altercation – and his refusal to provide the police with information identifying the codefendant, were sufficient to support the defendant’s conviction of accessory after the fact to murder.

Commonwealth vs. Steven Putnam

Whether a defendant who claims to have been convicted based on a false accusation – e.g., a false claim of sexual assault – has asserted a claim of “factual innocence” within the meaning of G. L. c. 278A, for purposes of obtaining postconviction DNA testing; whether the requested testing in such a situation could be “material to . . . [his] identification as the perpetrator of the crime” within the meaning of the statute.  This case will be paired for argument with SJC-12560, Commonwealth vs. Stanley Williams.

Commonwealth vs. Christian German

1.  Whether the protocol recommended by this court in Commonwealth v. Silva‑Santiago, 453 Mass. 782, 797-798 (2009), in the context of photo arrays – i.e., calling for certain advisements to be given by police to the witness before showing the witness the array – ought to apply to showups as well.

2.  Whether testimony concerning an eyewitness’s level of certainty in his or her identification of the perpetrator should be admissible only if the statement of certainty was made before the eyewitness received any potentially confirmatory feedback from the police.

Impounded Case

Whether, after a judge denies a hospital’s petition for the involuntary civil commitment of an individual pursuant to G. L. c. 123, §§ 7-8, the hospital has authority to decline to discharge the individual and, instead, can immediately transfer him to another hospital for an evaluation pursuant to G. L. c. 123, § 12 (a), for the purpose of obtaining a second commitment of the person; whether the second commitment petition in these circumstances is an abuse or misuse of the admission procedure, which both deprives the District Court of jurisdiction and requires the individual’s immediate discharge and physical release.

Belky Ferman & another vs. Sturgis Cleaners, Inc. & another

Whether, when determining who qualifies as a “prevailing party” for purposes of the  Massachusetts wage act, Massachusetts courts will follow the reasoning of the Supreme Court in Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Resources, 532 U.S. 598 (2001) – i.e., under Federal fee-shifting statutes, in order to qualify as a prevailing party one must obtain a “judicially sanctioned change in the legal relationship of the parties,” such as a judgment on the merits or a court-ordered consent decree – or whether Massachusetts should continue to recognize the so-called “catalyst theory” of prevailing.

Commonwealth vs. Donne Agogo

Whether the police had probable cause to justify their strip search of the defendant, i.e., “probable cause to believe that the defendant had concealed [contraband] on his person or his clothing that would not otherwise be discovered by the usual search incident to arrest.”  See Commonwealth v. Prophete, 443 Mass. 548, 554 (2005).

Commonwealth  vs. Jesse Carrillo

1.  Where it was alleged that the defendant procured heroin for the victim, a college classmate, and the defendant was charged on that basis with distributing the heroin to the victim, whether the judge erred in declining to instruct the jury on the lesser offense of simple possession for personal use based on a joint venture.

2.  Whether the evidence warranted a finding that the defendant’s distribution of heroin to the victim was wanton or reckless in the circumstances of this case, thus justifying the defendant’s conviction of involuntary manslaughter.

Lynne Blanchard & others vs. Steward Carney Hospital, Inc. & others

Whether the motion judge properly denied the defendants’ special motion to dismiss under the anti-SLAPP statute, G. L. c. 231, § 59H, on the ground that the plaintiffs asserted colorable claims of defamation with the primary purpose of recovering for the harm allegedly caused by the defendants’ actions; whether the defendants were entitled to discovery as to the plaintiffs’ motivation for asserting the defamation claims; whether this interlocutory appeal is collateral to the merits, as required by the doctrine of present execution. (The case will be paired for oral argument with 477 Harrison Ave., LLC vs. Jace Boston, LLC, No. SJC-12600.)

RCA Development, Inc. & another vs. Brockton Zoning Board of Appeals

Whether, under G. L. c. 41, § 81P, a landowner who believes that his or her plan does not require approval under the subdivision control law is obligated to apply to the planning board for an “approval not required” endorsement in order to divide the property into two or more buildable lots.

Board of Higher Education vs. Commonwealth Employment Relations Board

Where a provision in the collective bargaining agreement between the Board of Higher Education and the union representing faculty at certain Massachusetts State colleges and universities limits the percentage of courses that may be taught by part-time faculty, whether that provision impermissibly intrudes on the the statutory authority under G. L. c. 15A, § 22, to “appoint, transfer, dismiss, promote and award tenure to all personnel,” or on the board’s authority to determine and effectuate educational policy.

Boston Globe Media Partners, LLC vs. Department of Public Health

Whether the judge correctly declared that electronic indexes maintained by the Department of Public Health listing all births that have occurred in Massachusetts from 1953 through January, 2001, and all marriages that have occurred in Massachusetts since 1983 are exempt from disclosure under the public records law because disclosing them would constitute an unwarranted invasion of personal privacy under G. L. c. 4, § 7, cl. Twenty-sixth (c).

Boston Housing Authority vs. Y. A.

Whether, Violence Against Women Act provided the defendant with a defense to eviction from public housing for nonpayment of rent, where the defendant stated at the hearing that her failure to pay rent and arrearages was the direct result of a physically, emotionally, and financially abusive relationship; whether the housing authority failed to take reasonable steps to avoid eviction by requiring the defendant to obtain a restraining order before allowing her to remain in the apartment.

Commonwealth vs. Mark Adams

1.  Whether Massachusetts should recognize the common-law crime of interfering with a police officer in the lawful performance of his or her duties; and if so, whether the jury instructions on the elements of that crime were correct.

2.  Whether police officers, who had just served the defendant in hand with a notice suspending his firearms license, were in the “lawful performance” of their duties when demanding the immediate surrender of his firearms, where (i) the obligation to surrender the firearms under G. L. c. 140, § 129D, does not apply if an “appeal is pending,” (ii) the defendant expressed the intention to consult his attorney immediately upon receiving notice of the suspension, but (iii) the police nevertheless confiscated the weapons on the spot, before the defendant had an opportunity to consult with an attorney or commence an appeal.

Peter Hedberg & another vs. May Wakamatsu

Whether, in a medical malpractice case, statements made by a medical student who assisted a physician during surgery, concerning the student’s own allegedly negligent conduct during the surgery, where the statements were made after the surgery in the absence of the physician, are admissible against the physician either as statements of an “agent or employee on a matter within the scope of that relationship and while it existed” (see Mass. G. Evid. § 801 [d] [2] [D]); or, if the student claims not to remember making the statements, as “statement[s] against interest” of an “unavailable declarant” (see Mass. G. Evid. §§ 804 [a] [3] and 804 [b] [3]).

September 2018

Laurita Sullivan & others vs. Sleepy's LLC & others

The United States District Court for the District of Massachusetts has certified the following questions to this court:

1. If a 100% commission inside sales employee works more than forty hours in a given work week, is the employee entitled to any additional compensation specifically for overtime hours worked when the employee's total compensation (through draws and commissions) for that workweek is equal to or greater than 1.5 times the employee's regular rate or at least 1.5 times the minimum wage for all hours worked over 40 hours in a workweek? If additional compensation is due, what is the employee's regular rate for purposes of calculating overtime pay?

2. If a 100% commission inside sales employee works on a Sunday in a given work week, is the employee entitled to any additional compensation for Sunday premium pay when the employee's total compensation (through draws and commissions) for that workweek compensates the employee in an amount equal to or greater than 1.5 times the employee's regular rate or at least 1.5 times the minimum wage for all Sunday hours worked? If additional compensation is due, what is the employee's regular rate for purposes of Sunday premium pay?"

Wayne Oliver vs. General Electric Co.

The United States District Court for the District of Massachusetts has certified the following question to this court:

"[W]hether or not the Massachusetts statute of repose, Gen. Laws ch. 260, § 2B, can be applied to bar personal injury claims arising from diseases with extended latency periods, such as those associated with asbestos exposure, where defendants had knowing control of the instrumentality of injury at the time of exposure." 

Commonwealth vs. Abdullah Yasin  

1.  Whether a judge may reserve ruling on a [Mass. R. Crim. P. 25 (a)] motion made at the close of the Commonwealth's case and, after the jury has returned a guilty verdict, allow that motion nunc pro tunc to the close of the Commonwealth's case, or whether such a ruling falls under 25 (b)? 

2.  May such a ruling be appealed by the Commonwealth?

Commonwealth vs. Dennis Jones  

1. What is the burden of proof that the Commonwealth bears on a motion . . . in order to establish a 'foregone conclusion,' as that term is used in Commonwealth v. Gelfgatt, 468 Mass. 512, 520-526 (2014)? 

2. Did the Commonwealth meet its burden of proof in this case?

3. When a judge denies a 'Gelfgatt' motion filed by the Commonwealth and the Commonwealth thereafter renews its motion and provides additional supporting information that it had not provided in support of the motion initially, is a judge acting on the renewed motion first required to find that the additional information was not known or reasonably available to the Commonwealth when the earlier motion was filed before considering the additional information? 

Commonwealth vs. Deneisha Newberry

Where a complaint has issued charging a defendant with a crime and the Commonwealth has sought arraignment, whether or under what circumstances a judge may to decline to arraign the defendant on the charge for purposes of G. L. c. 276A, or otherwise; whether, prior to arraignment, a judge may order conditions of release including global positioning system monitoring and tracking.



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