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Amicus Announcements from September 2020 to August 2021

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.

August 2021

Commonwealth vs. Edward B. Fleury

1. Where the defendant was convicted of twelve counts of violating G. L. c. 140, § 131L, by improperly "stor[ing] or keep[ing]" firearms, whether the firearms that were the subject of the convictions were "kept, concealed or used unlawfully or for an unlawful purpose," for purposes of the forfeiture statute, G. L. c. 276, § 3 (b).

2. If G. L. c. 276, § 3 (b), is construed to require or permit forfeiture of firearms that have been stored or kept in violation of G. L. c. 140, § 131L, whether the defendant's rights under the Second Amendment to the United States Constitution or art. 17 of the Massachusetts Declaration of Rights, or both, are implicated.

Commonwealth vs. Nicholas Santana

1. Where a defendant has been sentenced to imprisonment in the State prison, and the sentence has been ordered "to take effect forthwith, notwithstanding" a sentence the defendant is serving "in a jail or house of correction," G. L. c. 279, § 27, what effect, if any, does G. L. c. 279, § 27, have on a house of correction sentence that has been suspended or on a probationary term.

2. In reprobating a probationer, whether or in what circumstances a judge may impose conditions of probation that lack a specific relationship to the crimes for which the probationer originally was placed on probation but may be related to the probationer's performance while on probation, including conduct that forms the basis of a violation of probation.

Commonwealth vs. Jerron Perry 

Whether evidence obtained pursuant to cell tower dump or geofence warrants must be suppressed where historical telephone cell site location information for every individual at a specific place and time was sought, and the applications supporting the warrant applications did not identify a suspect by name or indicate that a perpetrator or perpetrators of a crime used a cellular phone during the relevant time; whether affidavits from law enforcement officers attesting that most individuals use cellular telephones and keep them turned on, support probable cause to issue the warrants. 

Matter of James Michael Kelly

1. Where bar counsel charges that a respondent attorney improperly has disclosed "confidential information" relating to the representation of a client, see Mass. R. Prof. C. 1.6 and 1.9 (c), whether bar counsel has the burden of proving that the information is not "generally known" and therefore is "confidential," or, instead, whether a claim that the information is "generally known" is an affirmative defense on which the respondent bears the burden of proof; if a respondent does not have the burden of proof, whether he or she has a burden of production.

2. Whether, or in what circumstances, publication of information in a newspaper or on the internet is evidence of "general knowledge" for purposes of evaluating whether information is "confidential" within the meaning of Mass. R. Prof. C. 1.6 and 1.9 (c).

July 2021

Regan Stempniewicz & another vs. Nikita Stempniewicz & others

Whether, pursuant to the Massachusetts Uniform Trust Code, an individual may delegate the power to create a trust to an agent through a power of attorney; and whether, if the power to create a trust is delegable, the power of attorney must specifically authorize the creation of a trust. 

Commonwealth vs. Erickson Daveiga

Whether the defendant’s motion to suppress should have been allowed on the ground that the police lacked a basis to stop the vehicle in which he was a passenger, where the vehicle was initially detained for blocking a street; the police officer permitted the vehicle to leave without issuing a citation; and, shortly thereafter, the police officer stopped the vehicle to issue a citation for the previous violation (i.e., blocking the street).

In the matter of Expungement

Whether the Superior Court judge abused her discretion in ordering expungement of the defendant’s convictions pursuant to G. L. c. 276, § 100K, where the judge made a finding that expungement was in the best interests of justice, see § 100K (b), but made no findings that the defendant had satisfied any of the six enumerated eligibility requirements under § 100K (a).

Commonwealth vs.  Andrew M. Rossetti

1.  Whether G. L. c. 6, § 178H (a)(2), permits a State prison sentence for a period of less than five years; whether G. L. c. 6, § 178H (a)(2), requires a mandatory minimum term of five years.

2.  Whether the Superior Court judge's proposed sentence of one to two years committed to State prison is lawful under G. L. c. 6, § 178H (a)(2); whether G. L. c. 6, § 178H (a)(2), requires that the maximum term of the sentencing range be not less than five years.

May 2021

Commonwealth vs. Richard Comenzo      

In a case involving the denial of a motion to suppress evidence in which a search warrant rested, in part, on evidence provided by a pole camera trained on an apartment building and used to determine the location in the building where the defendant lived, whether the judge erred in his application of the two-prong test announced in Commonwealth v. Mora, 485 Mass. 360 (2020).

Commonwealth vs.  Leon G. Dufresne

Whether, or in what circumstances, a defendant is entitled to the assistance of counsel in connection with G. L. c. 209A proceedings; whether a defendant's constitutional right to the assistance of counsel or due process is infringed if he or she is criminally charged with violation of a civil abuse prevention order that issued, pursuant to G. L. c.  209A, while the defendant was not represented by counsel. 

Commonwealth vs. Averyk Carrasquillo

Whether an individual has a reasonable expectation of privacy in information that he or she posts to his or her social media account (e.g., Snapchat, Facebook), and whether the individual's account privacy settings are relevant to whether there is a reasonable expectation of privacy in such posts.

Stephen Foster & others vs. Commissioner of Correction & others

Whether the plaintiff’s second motion for a preliminary injunction was properly denied on the ground that the plaintiffs were unlikely to succeed on their claim that the Department of Correction was deliberately indifferent to the risk posed by COVID-19 in prisons; whether the commissioner is obligated to combat the spread of COVID-19 in prisons by decreasing the inmate population.

CP 200 State LLC v. CIEE, Inc.

Whether, under the doctrine of present execution, an immediate interlocutory appeal lies from an order denying a motion for enforcement of a (purported) settlement agreement.

Beth Reuter v. City of Methuen

Whether, under the Wage Act, the plaintiff is entitled to treble the amount of accrued vacation wages, where the defendant paid them three weeks after the date she was discharged, but before she commenced this action; whether the judge properly ruled that the plaintiff’s damages were limited to treble the interest on her vacation wages from the date of discharge to the date the wages were paid.

Whether the plaintiff is a prevailing party entitled to attorneys’ fees and costs under the Wage Act, where, before this action was commenced, the defendant had already paid the amount ordered by the judge as damages; if so, whether the amount of attorneys’ fees was excessive.

April 2021

Matthew Sacks & another vs. Nancy Dissinger & others

For purposes of G. L. c. 203E, § 604, whether the period "[one] year after the settlor's death" to contest the validity of a revocable trust constitutes a statute of repose or a statute of limitations.

Impounded Case

Where there is reason to believe that a juvenile may be incompetent, whether the juvenile may be arraigned before a competency evaluation has been conducted; if not, whether the arraignment would constitute a "demonstrable error[] by [a] court employee[]," G. L. c. 276 § 100K, such that expungement of the record created as a result of the juvenile court appearance is permissible.

Kellie Pearson & others vs. Thomas M. Hodgson, individually and in his official capacity as Sheriff of Bristol County, & another 

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

"Did the Massachusetts Legislature, through the provisions of 2009 Mass. Legis. Serv. Ch. 61 (S.B. 2119) §§ 12(a), 12(c), 15, or [Mass. Gen. L. c.] 127, § 3, taken separately or together, authorize the Bristol County Sheriff's Office to raise revenues for the Office of the Sheriff through inmate calling service contracts?

The Masonic Temple Association of Quincy, Inc. vs. Jay Patel & another v. Leo Martin & others; Dipika, Inc. vs. Acadia Insurance Company; and The Masonic Temple Association of Quincy, Inc. vs. Acadia Insurance Company

Where the named insured in a general liability insurance policy includes a "doing business as" designation, whether policy coverage is limited to liabilities arising out of the "doing business as" entity's business or whether it applies to the named insured when it operates in other capacities; e.g., where, as here, the named insured is "Dipika Inc. dba Super 8," whether policy coverage is limited to liabilities arising out of Dipika's operation of the Super 8 Motel or whether the policy also provides coverage more broadly to other Dipika, Inc., operations.

Kanika Misra & others vs. Credico (USA) LLC & others

Whether the motion judge erred in applying the common law “right to control test” in determining whether the defendant was the plaintiffs’ joint employer; including, whether the “right to control” test has been supplanted by the statutory test under G. L. c. 149, § 148B, in the joint employment context.

Arnold Emma v. Massachusetts Parole Board

Questions Reported by the Single Justice:

"1. Does the Parole Board have authority to reparole a medical parolee -- in other words, release him or her back into the community after it finds that the individual has violated his or her parole -- and, if so, what is the process by which it may do so;

 2. Does the Commissioner have authority to reparole an individual whose medical parole has been revoked by the board after he or she has violated parole, and, if so, what is the process by which she may do so;

 3.  Does the statutory and regulatory scheme regarding the revocation of medical parole violate a parolee's due process rights, where it does not permit the board to release the parolee back into the community once it finds that he or she has violated the terms of his or her parole."

March 2021

Commonwealth vs. Martin P. Curran

Whether, in order for a criminal defendant validly to agree to a jury-waived trial that is to be conducted in whole or in part via “Zoom,” he or she must first be advised of specific constitutional rights that may be implicated -- e.g., to be present in the courtroom, to a public trial, to confront witnesses face to face, etc. – and have a colloquy with the judge as to his or her understanding of and willingness to forego those rights and sign a written waiver of the same.

Commonwealth vs. Marek J. Kozubal

Whether, in the definition of “mandated reporter” contained in G. L. c. 119, § 21, clause (ii), the phrase “or home or program funded by the commonwealth or licensed under chapter 15D that provides child care or residential services to children or that provides the services of child care resource and referral agencies . . .” modifies the phrase “person paid to care for or work with a child in any public or private facility,” or whether the phrases constitute two separate categories of mandated reporters.

Commonwealth vs. William McDermott

When ruling on a request for bail or to stay execution of a sentence in the COVID-19 pandemic era, whether a judge may weigh the fact that the detainee or prisoner has already been infected with and recovered from COVID-19, has received the COVID-19 vaccine, or both.

American Family Life Assurance Co. of Columbus vs. Dawn Diana Parker & another:

Whether the "revocation on divorce" provision of G. L. c. 190B, § 2-804, applies to a private Massachusetts life insurance contract issued prior to the effective date of the statute.

Russell Berry vs. The Commerce Insurance Co.:

For purposes of the Massachusetts Tort Claims Act, G. L. c. 258, § 2, whether a police officer was acting within the scope of his employment when he injured a fellow officer while driving his personal vehicle, on town property, during a paid lunch break; whether the same standard applies to the determination of "scope of employment" for purposes of worker's compensation under G. L. c. 41, § 111F,  and the "scope of . . . employment" under G. L. c. 258. 

H1 Lincoln, Inc. vs. South Washington Street, LLC & others.

Whether the trial judge erred in concluding that the plaintiff’s claims under G. L. c. 93A sounded in tort and, therefore, that the limitation of liability clause in the parties’ contract did not operate to preclude the plaintiff from recovering damages under G. L. c. 93A.

Commonwealth vs. Eli Vigiani

Whether the Juvenile Court judge erred in denying the Commonwealth’s motion to preclude the juvenile’s mother from testifying at the hearing on the juvenile’s motion to suppress, including:  whether G. L. c. 233, § 20, Fourth, creates a parent-child disqualification that bars the mother from testifying; and if so, whether, under the circumstances presented here, the juvenile has a constitutional right to present the mother’s testimony that overrides any statutory disqualification.

February 2021

Pamela Laramie vs. Philip Morris USA, Inc.

Whether the plaintiff’s claim for punitive damages is barred by principles of res judicata because it was adjudicated and resolved in a prior action brought by the Massachusetts Attorney General, which resulted in the 1998 Master Settlement Agreement and corresponding Massachusetts consent decree and final judgment (Middlesex Superior Court, Civil Action No. 95-7378).

West Street Associates, LLC vs. Planning Board of the Town of Mansfield & another

Whether the Superior Court erred in concluding that the town of Mansfield’s zoning bylaws were preempted by State law, G. L. c. 94G, to the extent the bylaws restrict the issuance of special permits for the construction and operation of marijuana dispensaries to non-profit entities


1.  Whether the requirement of detailed findings, including consideration of less restrictive alternatives to commitment, that applies to substance use disorder commitments under G. L. c. 123, § 35, and was articulated in Matter of a Minor, 484 Mass. 295 (2020), applies to civil commitments under G. L. c. 123, §§ 7, 8.

Salvatore F. DiMasi vs. Secretary of the Commonwealth

Whether, under G. L. c. 3, § 45 (m), the plaintiff is automatically disqualified from registering as a lobbyist for a period of ten years from the date of his Federal felony convictions, where the Secretary of the Commonwealth determined that those convictions were based on conduct that would violate one or more sections of G. L. c. 3, 55, or 268A, but where the plaintiff was not convicted of violating any of those State laws.

A. Richard Schuster & another
v. Wynn Resorts Holdings, LLC & others

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

"Did the February 11, 2019 version of the Rules of Blackjack that were published by the Massachusetts Gaming Commission and posted on its website in accordance with 205 Code Mass. Regs., § 147.02 permit a Massachusetts casino to pay 6:5 odds to a player who was dealt a winning Blackjack hand, while not otherwise playing by the '6 to 5 Blackjack Variation' rules that were articulated in Rule 6a of the February 11, 2019 version of the Rules of Blackjack?"

(Note that this case will be argued with SJC-13031, Ted DeCosmo vs. Blue Tarp Redevelopment, LLC & others)

January 2021

Town of Norton Conservation Commission v. Robert Pesa & another

Whether the three year time period for commencing an action pursuant to G. L. c. 131, § 40, par. 30, of the Wetlands Protection Act is a statute of limitations or a statute of repose; whether, if a statute of repose, the three year time period applies only the first time the real estate in question is acquired by a new owner or whether a new three year period commences with each triggering event, i.e., the recording of the deed or the date of the death by which the real estate was acquired by the new owner.

Patricia A. Fournier, as Personal Representative of the Estate of Emily Misiaszek vs. Secretary of Executive Office of Health and Human Services

Whether assets held in an irrevocable trust that permits the grantor to appoint principal to a non-profit organization or charity satisfy the "any circumstances" test, such that they are countable assets for purposes of determining the grantor's eligibility for Medicaid benefits. See 42 U.S.C. § 1396p(d)(3)(B); 130 Code Mass. Regs. § 520.023 (C) (1) (a).

December 2020

Joseph R. Mullins & another v. Joseph R. Corcoran & another

Where the plaintiff is the minority shareholder in a closely held limited liability company (LLC), whether the plaintiff’s derivative claims on behalf of the LLC against the majority shareholders are precluded by his direct (individual) claims in a prior action against them; whether the court should follow the Restatement (Second) of Judgments § 59 (3) (b) (1982).

Commonwealth v. Rowen D. Lowery

In a prosecution for trafficking of a person for sexual servitude, whether the alleged victim’s out-of-court statements were properly admitted against the defendant as statements of a joint venturer in furtherance of the joint venture; whether the declarant could properly be deemed both the victim of and a joint venturer in the defendant’s alleged trafficking.

Commonwealth v. Tony A. Tinsley

Whether the defendant was wrongly convicted of armed home invasion, G. L. c. 265, § 18C, where there was no evidence at trial that he was armed when he entered the attached garage of the victims’ dwelling, but he armed himself with an object found therein and then entered the living space through a locked door and attacked the victims.

Suburban Home Health Care, Inc. vs. Executive Office of Health and Human Services, Office of Medicaid

Whether an administrative action taken by MassHealth pursuant to G. L. c. 118E, § 38, to recoup an alleged overpayment to a provider is subject to any statute of limitations; whether, if not, there is nevertheless a limit to how long a state agency might take to collect an overpayment through administrative action.

November 2020

Joseph A. Curtatone vs. Barstool Sports & another

Where the wiretap statute, G. L. c. 272, § 99, prohibits certain secret recordings; where an individual has consented to a recording; and where, therefore, the recording is not "secret," whether the recording is nonetheless illegal and in violation of the statute if the consent to the recording was fraudulently obtained.

Cobble Hill Center, LLC vs. Somerville Redevelopment Authority           

Whether the Somerville Redevelopment Authority had the authority to effectuate a taking by eminent domain pursuant to the so-called "demonstrations clause" of the urban renewal statute, G. L. c. 121B, § 46 (f), without doing so in connection with an approved urban renewal plan.

Leroy J. Randolph vs. Commonwealth & another

Whether a third party who is the subject of an order, pursuant to G. L. c. 278A, § 7 (c), requiring that he provide a sample for purposes of deoxyribonucleic acid (DNA) testing, may appeal the order under G. L. c. 278A, § 18, or, alternatively, seek review of the order pursuant G. L. c. 211, § 3.

Cassouto-Noff & Co. vs. Amy Diamond

Whether an Israeli judgment should be recognized in Massachusetts, pursuant to the Uniform Foreign Money-Judgment Recognition Act, G. L. c. 235, § 23A; whether, for purposes of the act, the Israeli court properly exercised personal jurisdiction over the defendant; which jurisdiction's law applies to the determination whether the exercise of personal jurisdiction was proper in Israel; and whether the defendant had sufficient minimum contacts with Israel to satisfy due process considerations.

CommCan, Inc. & another vs. Town of Mansfield

Whether the Land Court judge erred in granting summary judgment for the plaintiffs, including:  whether the plaintiffs have standing to pursue a declaration under G. L. c. 240, § 14A; whether G. L. c. 94G, § 3 (a) (1), prohibits the town’s zoning bylaws from operating to prevent the plaintiffs from converting their licensed medical marijuana dispensary to a retail marijuana establishment; and, more specifically, whether the plaintiffs are presently “engaged in” in the cultivation, manufacture or sale of marijuana or marijuana products for purposes of § 3 (a) (1), where the plaintiffs hold a State-issued provisional license to operate a medical marijuana dispensary and have obtained a special permit from the town to construct and operate the dispensary, subject to a pending appeal, but where construction of the dispensary has not yet begun.

Kathleen Hornibrook vs. Cherilyn Richard & another

Whether the Superior Court judge erred in denying the motion of the court-appointed conservator to dismiss the complaint on the ground that she was entitled to absolute quasi-judicial immunity from suit.

October 2020

Mederi, Inc. vs. City of Salem & others

Where an applicant for a marijuana retail establishment (MRE) license has obtained a special permit to operate under applicable zoning bylaws or ordinances; the applicant contends that it has met all requirements of the municipality's application process; and it contends that an applicant may not proceed to the Cannabis Control Commission without a certificate that it has executed a host community agreement (HCA) with the municipality, whether a municipality's decision not to execute a HCA with the applicant impermissibly usurps the authority of the commission to determine to whom a MRE license will issue, pursuant to G. L. c. 94G.

Commonwealth vs. Alfred Jenks

1. What information is sufficient, for purposes of G. L. c. 278A, § 3 (b)(5), to merit a hearing on a defendant's motion for post conviction analysis under G. L. c. 278, § 3.

2. Whether the use of digital photography for the comparative analysis of ballistics evidence is analysis that is a material improvement over any previously conducted analysis.   

Massachusetts Port Authority v. Turo Inc. & others

Whether, under the Federal Communications Decency Act, 47 U.S.C. § 230, the defendant is immune from liability on the ground that Massport’s claim is based on information provided by the defendant’s customers (namely, their use of the defendant’s online platform to arrange peer-to-peer car rental transactions at Logan Airport) and treats the defendant as the publisher or speaker of that information.

Oracle USA, Inc. & others vs. Commissioner of Revenue                        

Whether the Appellate Tax Board erred in concluding that the taxpayers were entitled to seek apportionment of sales tax on the sale or licensing of computer software through the abatement process under G. L. c. 62C, § 37, without having complied with the commissioner’s rules for apportionment enacted pursuant to G. L. c. 64H, § 1, as set forth in 830 Code Mass. Regs. § 64H.1.3.

September 2020

Town of Sudbury vs. Energy Facilities Siting Board;

Protect Sudbury vs. Energy Facilities Siting Board:

Whether the final decision of the Energy Facilities Siting Board (board) approving, with conditions, (a) a new underground transmission line located primarily in Sudbury and Hanson, within an inactive Massachusetts Bay Transportation Authority right of way and an in-street segment; and (b) individual and comprehensive zoning exemptions from the zoning bylaws of the towns of Sudbury, Hudson, and Stow, should be set aside.

John W. Vazquez Diaz vs. Commonwealth

Victoria Marble vs. Commonwealth

In the context of the ongoing COVID-19 pandemic, absent consent, whether constitutional considerations attendant to a pretrial evidentiary suppression hearing may be satisfied by a hearing conducted by video conference, where some or all of the participants are not physically present in the same location as other participants; if so, under what circumstances.



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Clerk Francis V. Kenneally (617) 557-1188
Assistant Clerk Maura A. Looney (617) 557-1189
Case & Procedures Coordinator Charlotte M. Houlihan (617) 557-1075


Clerk Francis V. Kenneally
Assistant Clerk Maura A. Looney
Case & Procedures Coordinator Charlotte M. Houlihan


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John Adams Courthouse
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