Amicus Announcements from September 2017 to August 2018

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.

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.

The following are amicus announcements for the 2017-2018 court year

August 2018

Commonwealth vs. Stanley Fredericq

Whether the judge properly allowed the defendantʼs motion to suppress evidence found in his bedroom and in a crawl space on the ground that the police seized it by exploiting the (concededly) unlawful tracking of a cell phone using cell site location information; whether the Commonwealth established that the search and seizure were sufficiently attenuated from the unlawful tracking to dissipate the taint; whether the defendant had a reasonable expectation of privacy in the crawl space.

Commonwealth vs. Maurice R. Pridgett

Where knowledge is an element of the crime of receiving a stolen motor vehicle pursuant to G. L. c. 266, § 28 (a), whether an individual's presence in the vehicle is sufficient to establish probable cause for an arrest or whether something more, or different, is required.

June 2018

Commonwealth vs. Nathan E. Lugo
Where the defendant was convicted of murder in the second degree for a homicide he committed as a juvenile, whether imposing a mandatory sentence of life with the possibility of parole violated the Eighth Amendment of the United States Constitution or article 26 of the Massachusetts Declaration of Rights; whether a juvenile defendant convicted of murder in the second degree is entitled to an individualized sentencing hearing.

Craft Beer Guild, LLC 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 § 2.08, after the Legislature repealed G. L. c. 138, § 25A (b), and the regulation was never re-promulgated.

Commonwealth vs. Quinton K. Williams
Whether the trial judge wrongly excused a juror, on the Commonwealth’s challenge for cause, after the juror expressed her view that the criminal justice system was unfair to young African-American men.

Everest National Ins. Co. vs. Berkeley Place Restaurant Ltd. & others
Whether a valet has a duty to prevent a customer from driving drunk by refusing to return the customer’s vehicle.

Layne C. Connor vs. William P. Benedict
Whether, under the Alimony Reform Act, G. L. c. 208, § 48, the judge improperly found that the parties’ economic marital partnership began during the cohabitation period prior to their marriage, where, during the cohabitation period, the wife was receiving alimony from her previous ex-husband.

Commonwealth vs. Ervin Feliz
Whether the mandatory imposition of GPS monitoring as a condition of probation for certain sex offenses, pursuant to G. L. c. 265, § 47, is unconstitutional as applied to the defendant, who was convicted of a noncontact sex offense. 

Ana Arias-Villano & others vs. Chang & Sons Enterprises & others
In a case involving an indoor bean sprout facility, whether the exemption for payment of overtime wages applicable to "laborers engaged in agriculture and farming on a farm," G. L. c. 151, § 1A[19], applies to persons who work at a facility where food is both grown and processed, but who are engaged in tasks associated with food processing, cleaning and maintenance, rather than food production, cultivation, growing or harvesting.

May 2018

Commonwealth vs. Richard Sherman

Whether an alleged victim must communicate to the defendant a withdrawal of consent before the defendant can be found guilty of rape; whether the jury must be so instructed. 

Commonwealth vs. Jose L. Arias

Where, pursuant to the "emergency aid doctrine," police officers may enter a home without a warrant if they have an objectively reasonable belief that someone inside may be injured or in imminent danger of physical harm, whether the doctrine extends to the type of circumstances presented in this case.

Commonwealth vs. Jonathan Brown

Whether a defendant charged with violating G. L. c. 272, § 7 (deriving support from, or sharing proceeds of, prostitution), is entitled to have the jury instructed on something more than just the three basic elements of the offense, see Commonwealth v. Thetonia, 27 Mass. App. Ct. 783 (1989) (concluding that not every literal violation of the statute supports a conviction); whether, absent the requirement of a finding that the defendant acted as a “pimp,” the statute is unconstitutional.

Susan Ciani vs. Brenda MacGrath & others

Whether a surviving spouse has standing to petition for the partition of real estate when his or her sole interest in the property originates from G. L. c. 191, § 15 (spouse’s elective share); how specifically the statute applies to real estate in the decedent’s estate.

April 2018

Commonwealth vs. Shea Braune

Whether the evidence was sufficient to warrant the defendant’s conviction of money laundering in violation of G. L. c. 267A, § 2 (2) (ii) (A), where the Commonwealth proved that she deposited money stolen by another into her bank account.

Jillian Calixto & another vs. Heather Coughlin & others

Whether “back pay” paid by an employer to displaced workers under the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101 et seq., constitutes “wages” for purposes of the Massachusetts wage act, G. L. c. 149, § 148.

Maria Bellalta & another vs. Zoning Board of Appeal of Brookline 
& others
Whether a landowner who seeks approval to alter a nonconforming single or two‑family residential structure in a manner that would increase its nonconforming nature, in addition to demonstrating that the alteration will not be substantially more detrimental to the neighborhood, see G. L. c. 40A, § 6, must also comply with the existing local zoning ordinance or by-law, e.g., by obtaining a variance if that is what would otherwise be required to make the change.

Caroline Roch vs. David Mollica & another

In a tort action commenced in Massachusetts against two individual nonresident defendants, stemming from an incident that occurred outside Massachusetts, whether in‑hand service of process on the nonresident defendants while they were temporarily present in Massachusetts was sufficient, without more, to establish personal jurisdiction over the defendants in Massachusetts; whether the court’s assertion of personal jurisdiction over the defendants in these circumstances, based on in-hand service alone, comports with a contemporary understanding of due process for purposes of the Massachusetts Constitution.

Commonwealth vs. Francis T. Brennan

Whether the judge properly dismissed a criminal complaint charging the defendant with criminal harassment in violation of G. L. c. 265, § 43A, for failing to allege three acts of harassing conduct, where the defendant allegedly installed GPS tracking devices on each complainant’s vehicle, tracked the vehicles’ locations on seventeen separate occasions without the complainants’ knowledge, and stated to the police that he believed one of the complainants was having an extramarital affair. This case will be paired for oral argument with SJC-12452.

March 2018

Commonwealth vs. Richard Gardner

Whether the Commonwealth has the authority to petition for the civil commitment of a defendant as a sexually dangerous person pursuant to G. L. c. 123A, § 12 (b), at the conclusion of a sentence that the defendant is serving for an out-of-state conviction but where the defendant has previously been convicted of, and served a sentence for, sexual offenses in Massachusetts.

February 2018

Impounded Case

Whether the respondent’s due process or equal protection rights were violated when his involuntary commitment hearing took place at the hospital rather than at the courthouse where, he argues, the hospital lacked reliable recording equipment, unauthorized recording devices were substituted, and large portions of the hearing were, as a result, not recorded.

Warren Yee vs. Massachusetts State Police

Whether and in what circumstances the denial of an employee’s request for a lateral transfer constitutes an adverse employment action that is actionable under G. L. c. 151B.

Commonwealth vs. Mark J. Davis

Whether the impoundment of the defendant’s vehicle was proper on the ground that the police officer had probable cause to believe that the defendant and the passengers in the vehicle unfit to drive because they were under the influence of marijuana.

Jeffrey S. Roberio vs. Paul M. Tressler

Where a juvenile homicide offender convicted of first degree murder became eligible for parole in light of Diatchenko v. District Attorney for the Suffolk District, 466 Mass. 655 (2013); where, at the time of the offense, G. L. c. 127, § 133A, provided that a prisoner eligible for but denied parole was entitled to a review hearing within three years; and where that statute was amended in 1996 to provide instead for a review hearing within five years, whether application of the five year provision, rather than the three year provision, to the juvenile homicide offender constitutes an ex post facto violation.   

Essex Regional Retirement Bd. vs. John Swallow & another

Whether a municipal police officer's conviction of firearm, assault and battery, assault with a dangerous weapon, and other charges, arising out of conduct that did not involve his badge, service weapon, or another officer, and that occurred while he was on administrative leave from his duties, constitutes "violation of the laws applicable to his office or position" and renders him ineligible to receive a retirement allowance pursuant to G. L. c. 32, § 15 (4). 

Merrimack College vs. KPMG, LLC

Whether an "auditor exception" to the doctrine of in pari delicto should be recognized to permit a client to assert a claim for negligent provision of professional services when an independent auditor fails to detect fraud or misconduct by the client's employee in connection with annual audits. 

Commonwealth vs. Melissa Pfeiffer

Where the subject of a grand jury's investigation is an adult, whether the court should adopt a rule similar to the rule adopted for juveniles in Commonwealth v. Walczak, 463 Mass. 808 (2012) (requiring that "where the Commonwealth seeks to indict a juvenile for murder and where there is substantial evidence of mitigating circumstances or defenses [other than lack of criminal responsibility] presented to the grand jury, the prosecutor shall instruct the grand jury on the elements of murder and on the significance of the mitigating circumstances and defenses"); whether any such rule would apply to a defendant who appeals from convictions following a jury trial, on indictments that issued prior to the decision in Walczak, and who requested grand jury instructions before the decision in Walczak, and moved to dismiss the indictments; whether the jury was properly instructed on the elements of arson, see G. L. c. 266, § 1.

Commonwealth vs. Cayla S. Plasse

Whether, or to what extent, a judge may consider an offender's rehabilitative needs, including factors associated with eligibility for a Department of Correction program, in determining the term of a sentence of incarceration.

Buffalo-Water 1,  LLC vs. Fidelity Real Estate Company LLC

In the context of an appraisal, whether judicial review should be limited to cases involving actual "fraud, corruption, dishonesty, or bad faith;" whether, or to what extent, judicial review should be available for claims involving nondisclosure or concealment of a conflict interest or bias on the part of an appraiser.

November 2017

Commonwealth vs. Maksim Lutskov

Where the defendant was convicted, as a youthful offender, of armed home invasion and other offenses, whether his sentence of twenty years in the State prision (the mandatory minimum for armed home invasion) violates article 26 of the Declaration of Rights. See Diatchenko v. District Attorney for the Suffolk District, 466 Mass. 655 (2013), and Commonwealth v. Perez, 477 Mass. 677 (2017).

Carmen Correa, administratrix, vs. Andreas P. Schoeck, M.D. & others

Whether a pharmacy owes a duty of care to its customer to notify her physician that her insurer will not pay for her prescription medication without prior authorization.

Christopher Anderson & others vs. Attorney General & another
Whether the Attorney General properly certified Initiative Petition No. 15-17 – which proposes a constitutional amendment imposing an additional State income tax of four per cent on the portion of one’s income that exceeds $1,000,000 – for inclusion on the Statewide ballot in November, 2018.

Commonwealth v. R. B.

In the context of the trial of a G. L. c. 123A, § 9, petition for discharge, where an objection to an alleged trial error was not made in the lower court, whether or in what circumstances appellate review is available; if appellate review is available, what standard of review should apply.


October 2017

In re a Juvenile 
1. Whether G. L. c. 119, § 72A, permits a Juvenile Court judge, who has dismissed an offense charged for lack of probable cause, to order a defendant to be tried in an adult court for lesser included offenses, where the lesser included offenses are supported by probable cause; and

2. Whether, if the statute so permits, its application against this defendant would be unconstitutional for failure to have provided him with proper notice of the charges pending against him or the possibility of such a transfer.  

September 2017

Rental Property Management Services vs. Loretta Hatcher

With respect to property that a person who is not an attorney does not own, or as to a tenancy in which that person is not identified as the lessor, whether the commencement or prosecution of a summary process or other legal proceeding by that person in the Housing Court constitutes conduct in violation of G. L. c. 93A.

W. Robert Allison vs. Elof Eriksson & others

Whether G. L. c. 156C, § 60 (b), provides the exclusive remedy for a minority member of a Massachusetts limited liability company who objects to a merger or consolidation of the company; whether the remedy provided in G. L. c. 156C, § 60 (b), is limited in application to a merger or consolidation that was properly authorized and proceeded without violation of fiduciary duties.

G4S Technology, Inc. vs. Massachusetts Technology Park Corp.

In the context of a construction contract dispute, whether or to what extent a party's own willful breach of contract should preclude it from recovering for another party's breach, either under the contract or in quantum meruit; whether the principles of Sipley v. Stickney, 190 Mass. 43 (1906), and Andre v. Maguire, 305 Mass. 515, 516 (1940), with respect to assertion of contract, quasi-contract, or unjust enrichment claims by a party who has breached a construction contract, should be replaced with a materiality analysis.

Doroteo Polanco vs. Andras Sandor & others

Given the requirement under G. L. c. 231, § 60B, that a plaintiff file a "bond in the amount of six thousand dollars in the aggregate secured by cash or its equivalent," whether a surety bond satisfies this requirement.