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

Amicus briefs must comply with the requirements of Rules 17, 19, and 20 of the Massachusetts Rules of Appellate Procedure. In order to assist the court, amicus briefs should focus on the ramifications of a decision and not solely on the interests of amici.

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

June 2019

SJC-12750
Commonwealth vs. Jason McCarthy

Whether either a search warrant or a court order is required before obtaining automatic license plate recognition (ALPR) data collected from fixed points for a particular vehicle.  See 18 U.S.C. § 2518 (Electronic Communications Privacy Act); 18 U.S.C. § 2703 (Stored Communications Act).

SJC-12759
Robert Smith vs. Robert E. Kelley

Whether the former sole shareholder of a defunct law firm that was organized as a professional corporation (PC) is liable for the PC’s debts on a theory of successor liability or piercing the corporate veil, where, the day after the plaintiff obtained a judgment against the PC in Federal court, the shareholder dissolved the PC and resumed practicing law as a sole practitioner under his own name.

SJC-12761
Robert Goreham vs. Rose S. Martins & another

1. Whether the common law implied warranty of habitability applies to a claim for personal injuries arising out of an accident on a driveway outside a rented residential dwelling; if so, whether the concept of "unreasonable misuse," applies to a claim involving premises liability; and whether the standard to be applied to a claim for personal injuries arising out of an alleged breach of the implied warranty of habitability is strict liability or, instead, proof of negligence is required.

2. Whether the statutory covenant of quiet enjoyment, G. L. c. 186, § 14, applies to a claim for personal injuries arising out of an accident on a driveway outside a rented residential dwelling; if so, whether the comparative negligence statute, G. L. c. 231, § 85, applies to a claim for breach of the covenant of quiet enjoyment.

SJC-12760
Green Mountain Insurance Company, Inc. vs. Robert Powers

Where a homeowner's insurance policy excludes from personal liability coverage any bodily injury "arising out of a premises" owned by the insured but that is not an "insured location" under the policy, whether coverage exists for an injury that occurs at a location owned by the insured but not the "insured location" listed in the policy, i.e., whether the injury arose out of the premises.

May 2019

SJC-12737
NTV Management, Inc. vs. Lightship Global Ventures, LLC & another

Whether the services that the plaintiff provided to the defendant pursuant to the parties' agreement were services that required the plaintiff to register as a "broker-dealer" pursuant to G. L. c. 110A, the Massachusetts Uniform Securities Act; whether, if so, the plaintiff's failure to register requires dismissal of all of the plaintiff's claims against the defendant, i.e., whether all of the plaintiff's claims arise out of the agreement.

SJC-12735
Commonwealth vs. Frank Sitrlacci & another

Where G. L. c. 94C, § 19 (a), provides that a prescription for a controlled substance is valid if a practitioner issues the prescription "for a legitimate medical purpose . . . in the usual course of . . . professional practice," whether the Commonwealth can prove a violation of the statute by showing one of two elements -- i.e., that a practitioner either failed to issue the prescription for a "legitimate medical purpose" or that the practitioner failed to issue the prescription "in the usual course of . . . professional practice" -- or whether the Commonwealth must show that the practitioner failed to do both.

SJC-12736
Janice Magliacane vs. City of Gardner

Whether the Massachusetts Tort Claims Act, G. L. c. 258, applies to claims by municipality residents of injury or damage stemming from the municipality's distribution of water to the residents; whether, by selling and distributing water, a municipality is engaging in commerce rather than performing a government function pursuant to the act.

SJC-12738
Town of Sudbury vs. Massachusetts Bay Transportation Authority & another

Whether the prior public use doctrine, under which public land devoted to one public use cannot be diverted to another inconsistent public use, bars the MBTA’s grant of an easement over a railroad right of way to a private company for the installation of an electric transmission line; whether the doctrine should be extended to bar diversion to an inconsistent private use.

SJC-12740
AMR Auto Holdings LN LLC & others vs. Matthew McGovern & others

Whether, under the circumstances presented here, the Superior Court had equitable authority to extend the “no-solicitation” and “no-hire” provision in the parties’ agreement for a period of one year beyond the expiration date agreed to by the parties;  including, among other issues, whether the agreement should be treated as an employment covenant or a business covenant; whether the extension of the “no-solicitation” and “no-hire” provision served to protect a “legitimate business interest” of the plaintiffs; and whether, under G. L. c. 214, § 1A, a pending claim for damages bars the entry of the injunctive relief ordered here.

SJC-12725
Joseph Buckman & another vs. Commissioner of Correction & others

Whether, for purposes of G. L. c. 127, § 119A, a written petition for medical parole of a prisoner must be considered by the superintendent of the facility where the prisoner is incarcerated, regardless of the superintendent's view as to the completeness or adequacy of the petition; which party bears the burden of preparing or procuring "(i) a medical parole plan; (ii) a written diagnosis by a physician licensed to practice medicine under section 2 of chapter 112; and (iii) an assessment of the risk of violence that the prisoner poses to society," G. L. c. 127, § 119A; and whether the Commissioner of Correction, on receipt of the petition and the superintendent's recommendation as to release of the prisoner, must provide notice to the prisoner of the recommendation, as well as a copy of the recommendation and any supporting or related materials.

SJC-12730
In the matter of Gregory M. Olchowski

1. Do unidentified client funds on deposit in an IOLTA account fall within the statutory definition of "abandoned property" under G. L. c. 200A?

2. Does Mass. R. Prof. C. 1.15, or any other rule of this court, govern the disposition of such funds?

3. Are any constitutional issues raised by the parties' proposed disposition(s) of the funds?

April 2019

SJC-12724
Commonwealth v. Lawrence Heywood

Whether the judge erred in determining that a blind juror was competent and qualified to be seated on a case involving a charge of assault and battery causing serious bodily injury, where the evidence included two photographs and other documentary evidence; whether appropriate accommodations were made to permit a blind juror to be seated as a juror; whether the evidence was sufficient to warrant a finding of serious bodily injury.

SJC-12714
GGNSC Administrative Services, LLC & others vs. Jackalyn M. Schrader

The United States Court of Appeals for the First Circuit has certified the following questions to the court:

"1. Is the wrongful death claim of Emma Schrader's statutory heirs derivative or independent of Emma Schrader's own cause of action?

2. If the answer to the first question does not resolve the issue presented to the [F]ederal [C]ourt, is Jackalyn Schrader's wrongful death claim nonetheless subject to Emma Schrader's Agreement that her 'next of kin, guardian, executor, administrator, legal representative, or heir' would arbitrate claims against GGNSC?".

SJC-12719
Adoption of Luc

1. Whether primary facts contained in multilevel hearsay in the dictation notes of an employee of the Department of Children and Families are admissible under the hearsay exception for official records, either without limitation, or limited to situations where the source of the hearsay was obligated to report the information as a matter of duty and routine; or whether primary facts contained in such multilevel hearsay must satisfy an independent exception to the hearsay rule.

March 2019

SJC-12706
Commonwealth v. A Juvenile

Where a juvenile has been placed on pretrial probation under G. L. c. 276, § 87, and Commonwealth v. Tim T., 437 Mass. 592 (2002), in contemplation of the Commonwealth’s dismissal of the case upon the juvenile’s successful completion, whether G. L. c. 276, § 58B, governs the revocation of pretrial probation.

Where the Commonwealth seeks revocation of pretrial probation in contemplation of dismissal, pursuant to G. L. c. 276, § 87, and Commonwealth v. Tim T., 437 Mass. 592 (2002), whether a violation of any condition must be proved by a preponderance of the evidence.

Whether the evidentiary principles in Commonwealth v. Durling, 407 Mass. 108, 111 (1990), apply to such a hearing.

SJC-12710
Commonwealth v. Michael Kelly

Whether, under G. L. c. 269, § 12E, discharging a firearm within 500 feet of a dwelling or other building in use is a strict liability offense, or whether the Commonwealth must prove that the defendant acted knowingly.

SJC-12708
James M. Ryan v. Mary Ann Morse Healthcare Corp.

Whether an assisted living residence, including its sponsor and any written residency agreement, is subject to the requirements of the security deposit statute, G. L. c. 186, § 15B.

SJC-12707
Margaret C. Doherty v. John Golbranson & others

Where, prior to participating in an activity, the decedent signed a release of liability and covenant not to sue, and the decedent died as a result of his participation in the activity, whether the release and covenant not to sue are binding on the decedent's heirs, such that their claim for wrongful death is barred or subject to a compete defense; whether a wrongful death claim is derivative of a decedent's rights or is independent of them.

SJC-12712
Allen H. Davis v. Gina Comerford and another

1. Whether a judge of the Housing Court may lawfully enter a prejudgment order for use and occupancy payments payable directly to the landlord in a summary process action.

2. If the answer to Question one is yes, whether the order contained an adequate legal and evidentiary basis for injunctive relief.

SJC-12697
Commonwealth vs. Manuel Torres-Pagan

Whether reasonable suspicion that the defendant was armed and dangerous was required to justify a patfrisk, where the defendant, during a routine traffic stop, voluntarily got out of his vehicle without being ordered to do so, and if so, whether the police had such reasonable suspicion in the circumstances of this case. The case will be argued the same day as Commonwealth vs. Onaxis Barreto, SJC-12699.

SJC-12698
Jon Butcher vs. University of Massachusetts & others

Whether the inclusion of information about a complaining witness’s allegations of criminal conduct in a police blotter constitutes an “official statement” by the police, thus bringing a newspaper reporter’s fair and accurate republication of that information within the protection of the common-law “fair report” privilege.

SJC-12700
Judy C. Lynch & others vs. Roxbury Comprehensive Community Health Center, Inc. & another

Where a defendant in a civil action moves for summary judgment (or to dismiss the complaint), relying on the immunity provided by G. L. c. 231, § 85W ("no person who serves without compensation . . . as an officer, director or trustee of any nonprofit charitable organization . . . shall be liable for any civil damages as a result of any acts or omissions relating solely to the performance of his duties as an officer, director or trustee"), and the motion judge denies the motion, whether the defendant may appeal that ruling immediately as a matter of right under the doctrine of present execution.

SJC-12683
Commonwealth vs. Kevin Francis

Whether a new trial is required where the defendant, who was convicted of murder in the first degree, claims he was denied his right, as an indigent person, to be furnished with a court appointed, government-compensated attorney and, instead, was represented by an attorney who, without his knowledge and consent, was essentially a volunteer, purporting to represent him privately yet without being retained by him.

SJC-12687
James Finn vs. Commonwealth

Where a defendant in the District Court is released on conditions following a dangerousness hearing pursuant to G. L. c. 276, § 58A, and is subsequently indicted, whether the defendant can be subject to a new hearing in the Superior Court, i.e., whether the defendant is "held under arrest" for purposes of the statute such that the Commonwealth can seek a new dangerousness hearing in the Superior Court.

February 2019

SJC-12690
Boston Globe Media Partners, LLC v. Boston Police Dep't & others

Whether booking photographs and arrest or charge related police reports are protected as "criminal offender record information" under G. L. c. 6, § 167, and are exempt from disclosure under the Public Records Law as records that are "specifically or by necessary implication exempted from disclosure by statute."  G. L. c. 4, § 7, Twenty-sixth (a).

SJC-12695
Impounded 

Whether or to what extent a hearing examiner of the Sex Offender Registry Board must articulate a basis in the record for disregarding, in whole or in part, expert evidence offered by the sex offender; whether expert evidence offered by the sex offender may be disregarded or given less weight if the expert evidence fails to consider all of the factors set forth in 803 Code Mass. Regs. § 1.33; whether the hearing examiner's decision correctly applied the clear and convincing evidence standard in determining the sex offender's classification level.

SJC-12694
Commonwealth vs. Gregory Long

Whether and to what extent the odor of unburnt marijuana can be relied on to establish probable cause for purposes of securing a warrant to search a commercial building.

SJC-12692
Commonwealth vs. Jean Gomes

1. Whether G. L. c. 265, § 13B½ (b), requires the Commonwealth to prove that a defendant who was a police officer, and thus a mandated reporter as defined in G. L. c. 119, § 21, was on duty at the time of the offense; and if so, whether the trial judge erred in denying the defendant’s postconviction motion for a new trial, or for a reduced verdict, where the evidence showed that the defendant was off duty during the incident of which he was convicted; and whether the trial judge’s failure to instruct the jury that they must find that the defendant was on duty as a police officer at the time of the incident created a substantial risk of a miscarriage of justice.

SJC-12693
Commonwealth vs. Raul Matta

1. Whether the motion judge erred in concluding that the seizure of the defendant was supported by reasonable suspicion, and thereby also erred in denying the defendant’s motion to suppress evidence discovered during the seizure.

2. Whether the conviction for violating the drug laws within one hundred feet of a public park, in violation of G. L. c. c. 94C, § 32J, must be vacated; including, among other things, whether G. L. c. 94C, § 32J, contains a mens rea element with respect to whether the defendant knew he was within one hundred feet of a public park; and whether “public park,” as used in G. L. c. 94C, § 32J, may include a pedestrian walkway such as the one at issue here.

SJC-12691
Douglas M. Rawan & another vs. Kanayo Lala, P.E. & another

Whether a liability insurer violated its duty, under G. L. c. 176D, § 3 (9) (f), to effectuate a prompt, fair, and equitable settlement of a claim in which liability had become reasonably clear, where the insured refused to consent to a settlement and the insurance policy provided that the insurer would not settle any claim without the informed consent of the insured; whether such a provision is unenforceable as against public policy.

SJC-12688
Lynn Hlatky vs. Steward Health Care System, LLC

Where a jury found that the defendant breached its employment contract with the plaintiff, and the implied covenant of good faith and fair dealing, by withdrawing its support for the laboratory at which she conducted her cancer research, whether the correct measure of damages was the value of any lost wages and benefits (as the defendant contends) or the cost of funding a new laboratory at which she could continue her research (as the judge permitted the jury to find).

SJC-12669
Matter of a Juvenile

Where, after the effective date of the Act Relative to Criminal Justice Reform, G. L. c. 119, § 52, excludes from the definition of "[d]elinquent child" a child who has committed a first offense of certain misdemeanors; and where a juvenile has a prior court history, but no record of adjudications or entries that allege unlicensed operation of a motor vehicle; whether the Juvenile Court judge wrongly denied the juvenile's motion to dismiss a delinquency complaint charging him with a first offense of unlicensed operation of a motor vehicle. This case is scheduled for oral argument on April 4, 2019.

SJC-12681
Boston Globe Media Partners, LLC vs. Chief Justice of the Trial Court

Whether the public has or should have a presumptive common law or constitutional right of access to records of the District Court Department of the Trial Court of show cause hearings conducted pursuant G. L. c.  218, § 35A, after a judicial officer makes a finding of probable cause but declines to issue process or a criminal complaint.

January 2019

SJC-12675
McLean Hospital vs. Town of Lincoln & others

Whether the hospital’s proposed use of land in a residential zoning district in the town of Lincoln – i.e., as a residential program for males aged fifteen to twenty‑one who are afflicted with borderline personality disorder or similar forms of emotional dysregulation, to help them to learn and practice appropriate behavioral and cognitive coping skills – constitutes an “educational purpose” within the meaning of G. L. c. 40A, § 3, the Dover Amendment.

SJC-12673
Commonwealth vs. Don Earl Johnson

Where the defendant pleaded guilty in Massachusetts to indecent assault and battery, received a sentence of time served, was required to register as a sex offender as a consequence of the conviction, and was subsequently convicted of failing to register and is currently incarcerated in a Federal prison in Florida for that offense, whether he is eligible to file a motion for postconviction scientific testing under G. L. c. 278A, § 2 (requiring, among other things, that moving party “has been convicted of a criminal offense in a court of the commonwealth [and] is incarcerated in a state prison, house of correction, is on parole or probation or whose liberty has been otherwise restrained as the result of a conviction”); specifically, (a) whether his current incarceration is “as a result of” the initial conviction of indecent assault and battery for purposes of the statute, and (b) whether the requirement that he register as a sex offender is itself a restraint on his liberty as a result of his conviction within the meaning of the statute.

SJC-12674
T. D.  vs. J. O.

1.  Whether, on a complaint for modification of a child custody provision in an earlier divorce judgment, the judge may take into account evidence of domestic violence incidents that allegedly occurred before the entry of the divorce judgment, or is restricted to considering only evidence of domestic violence that occurred after the initial judgment.

2.  Whether, at a modification trial, a judge must employ the rebuttable presumption set forth in G. L. c. 208, § 31A, that it is not in the best interests of a child to be placed in the custody of an abusive parent.

SJC-12672
Commonwealth vs. Sam C. Wassilie

1.  Whether, by placing a cell phone in a hidden location in a public bathroom and video‑recording individuals using the toilet, the defendant violated G. L. c. 272, § 105 (b), third par., the so-called “up-skirting” statute; whether, as a judge ruled, the statute is unconstitutionally vague and ambiguous by virtue of its inclusion of language that the recording must be “under or around the [person’s] clothing to view or attempt to view the [person’s] sexual or other intimate parts.”

2.  Whether for purposes of G. L. c. 272, § 105 (b), first par., which prohibits secretly recording a person who is nude or partially nude in a place or circumstance in which the person would have a reasonable expectation of privacy in not being recorded, the correct unit of prosecution is the number of recordings made or the number of individuals whose images are captured on the recordings.

SJC-12676
Cooper Cerulo & another vs. Herbert G. Chambers & others

Where an employee alleges violations of the Wage Act, G. L. c. 149, §§ 148, 150, against multiple affiliated corporate entities, what test should the court apply to determine which of the entities, if any, face potential liability as an “employer” under the statute?  Specifically, should the court apply the considerations set forth in G. L. c. 149, § 148B, to each alleged entity, as the plaintiffs argue; or, as the defendants argue and the judge below ruled, is liability under the Wage Act limited to one corporate employer (and its management), namely, that which issues the individual’s paycheck, unless the plaintiff alleges sufficient facts to warrant “piercing the corporate veil”?

December 2018

SJC-12662
UBS Financial Services, Inc. vs. Donna M. Aliberti

Whether, under New York law, the custodian of a nondiscretionary, or self-directed, individual retirement account (IRA) owes a fiduciary duty to a beneficiary of the IRA; whether, among other things, 26 U.S.C. s. 408(a), which defines an “individual retirement account” as “a trust created or organized in the United States for the exclusive benefit of an individual or his beneficiaries,” is relevant in making this determination.

SJC-12652                 
Care and Protection of M.C.

1.  Whether, on remand from this court following the decision in Care and Protection of M.C., 479 Mass. 246 (2018), the Juvenile Court judge correctly applied the principles announced in that decision when he granted in part and denied in part the father’s and the Commonwealth’s motions for access to records of the care and protection proceeding.

2.  Whether, as the mother claims, the judge erred in finding good cause for granting access, in advance of the criminal trial, to the transcript of the mother’s testimony and the testimony of her psychotherapist from the care and protection case; whether, as the father claims, the judge erred in denying access to the trial exhibits, guardian ad litem reports, and court investigator reports.

SJC-12651     
Richard A. DaPrato vs. Massachusetts Water Resources Authority

1.  Whether, in a case alleging retaliation under the Family and Medical Leave Act and asserting claims as well under the Americans with Disabilities Act and G. L. c. 151B, the judge’s instructions on causation improperly included “negative factor” language derived from 29 C.F.R. § 825.220(c) (prohibiting employers from “us[ing] the taking of FMLA leave as a negative factor in employment actions”) in addition to the “but for” language requested by the employer.

2.  Whether the employer was entitled to an instruction that it could not be found liable for a retaliatory discharge as long as it honestly believed that the employee had abused his medical leave, even if the employer’s belief turned out to be mistaken.

SJC-12659     
Joseph P. Marchese vs. Boston Redevelopment Authority

1. Whether the plaintiff has standing to challenge: (a) the Boston Redevelopment Authority's taking by eminent domain of certain easement rights in Yawkey Way pursuant to the so-called "demonstrations clause" of the urban renewal statute, G. L. c. 121B, § 46 (f); and (b) the authority's subsequent transfer of those rights directly to the Boston Red Sox without engaging in the public bidding process under the Uniform Procurement Act, G. L. c. 30B.

2. If the plaintiff has standing to make the challenge, then whether the Boston Redevelopment Authority exceeded its authority under the "demonstrations clause" of the urban renewal statute, G. L. c. 121B, § 46 (f), or violated the Uniform Procurement Act, G. L. c. 30B, § 1 (b) (25), when, without adopting a full-blown urban renewal plan, it took by eminent domain certain easement rights in Yawkey Way and transferred them directly to the Boston Red Sox without public bidding.

SJC-12654
Massachusetts Fine Wines and Spirits, LLC vs. Alcoholic Beverages Control Commission

Whether the motion judge properly ruled that the ABCC’s interpretation of 204 Code Mass. Regs. § 2.04 (1), which prohibits retail licensees from selling alcoholic beverages at a retail price below their “invoiced cost,” was unreasonable and an error of law, where the ABCC interpreted the term “invoiced cost” to mean strictly the amount stated on the invoice at the time of delivery without accounting for a cumulative quantity discount that did not appear on the invoice.

SJC-12563
Boston Police Department vs. Michael Gannon & another

1.  Whether the Civil Service Commission’s decision reversing the police department’s decision to bypass an applicant on the sole basis that his hair had tested positive for cocaine was supported by substantial evidence.

2.  Whether the Superior Court erred in holding that the Civil Service Commission, in this case, improperly took administrative notice of its decision in an earlier case involving the scientific reliability of the same type of drug testing at issue here.

SJC-12655
Commerce Insurance Company vs. Justina M. Szafarowicz

Whether an insurer can toll the accrual of postjudgment interest on an award obtained against the insured that exceeds the relevant policy limits by depositing the policy limits with the court, pursuant to Mass. R. Civ. P. 67, or whether the insurer must make an unconditional offer to pay the policy limits in order to toll that accrual.

SJC-12656
Justina M. Szafarowicz vs. Commerce Insurance Company

Whether, where an insurer is fulfilling its duty to defend its insured, a plaintiff and the defendant insured may enter into a "settlement/assignment" agreement prior to trial in which the insured waives defenses and assigns the plaintiff's rights against the defendant to the insurer, or whether such a pretrial agreement is only permitted in cases where an insurer has not fulfilled its duty to defend.

SJC-12647
Matthew Q. Christensen & another vs. Shawn E. Cox: 

Whether the civil remedy provision of the Massachusetts Wiretap Act, G. L. c. 272, § 99 (Q), or the Massachusetts Privacy Act, G. L. c. 214, § 1B, applies to the conduct of a person who, while physically present in a jurisdiction where it is lawful to do so, records a telephone call with an individual physically present in Massachusetts without that individual's consent. 

November 2018

SJC-12632
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.)

SJC-12633
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.”

SJC-12635
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.

SJC-12636
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.

SJC-12630
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.

SJC-12637
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.

SJC-12639
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.

SJC-12638
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.

SJC-12625
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

SJC-12598     
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.

SJC-12610     
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.

SJC-12595     
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.)

SJC-12597     
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.

SJC-12604     
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.

SJC-12594     
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.

SJC-12603
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.

SJC-12605     
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.

SJC-12596     
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.

SJC-12601     
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.

SJC-12599     
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.

SJC-12602     
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.

SJC-12592     
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).

SJC-12617                 
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.

SJC-12618     
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.)

SJC-12619     
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.

SJC-12621     
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.

SJC-12622     
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).

SJC-12623     
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.

SJC-12620     
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.

SJC-12624     
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

SJC-12542
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?"

SJC-12544
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." 

SJC-12568
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?

SJC-12564
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? 

SJC-12575
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.

Contact

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Fax

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Address

Francis V. Kenneally, Clerk
John Adams Courthouse
1 Pemberton Square, Suite 1400
Boston, MA 02108
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