profiles of the justices - Massachusetts Lawyers Weekly

Continued on page
This section contains summaries of all decisions
rendered by the Supreme Judicial Court
during its recently completed (though unofficial)
“term” — running from Sept. 1, 2005 to
Aug. 31, 2006. The full text of SJC opinions are
available through our website, www.masslawyersweekly.com
Administrative
Smoking restrictions -
Private clubs
Where a judge concluded that the Athol
board of health’s regulation prohibiting smoking
in private clubs was void and unenforceable,
that ruling must be vacated, as the board
did not exceed its authority in promulgating
the regulation.
American Lithuanian Naturalization Club,
Athol, Mass., Inc., et al. v. Board of Health of
Athol,et al.(Lawyers Weekly No.10-047-06) (28
pages) (Marshall,C.J.) (SJC) Motion for injunctive
relief heard by McCann, J., on a statement
of agreed facts. Christopher N. Banthin and
Mark A. Goldstein for the defendants; Michael
J.Tremblay for the plaintiffs; John M.Townsend,
for Boston Public Health Commission, amicus
curiae, submitted a brief (Docket No. SJC-
09501) (March 22, 2006).
Appeals
Buccal swab - DNA analysis
Where a petitioner has challenged a single
justice’s decision refusing to disturb a Superior
Court order that the petitioner submit a
buccal swab for deoxyribonucleic acid analysis,
the single justice’s decision will be allowed
to stand, as the petitioner has not met his burden
under SJC Rule 2:21.
Brown v. Commonwealth (Lawyers Weekly
No. 10-168-05) (1 page) (Rescript) (SJC) Appealed
from a decision entered by Greaney,J.,sitting
as single justice. Roger Witkin for the plaintiff
(Docket No. SJC-09591) (Nov. 17, 2005).
G.L.c. 211, §3 -
Adequate alternate remedy
Where a defendant petitioned a single justice
seeking for a conviction reversal or sentence
revision,the single justice rightly denied
the petition on the ground of the existence of
an adequate alternate remedy.
Norris v. Commonwealth (Lawyers Weekly
No. 10-111-06) (2 pages) (Rescript) (SJC) Appealed
from a decision of Cowin,J.,sitting as single
justice.Kevin Norris,pro se (Docket No.SJC-
09648) (June 26, 2006).
G.L.c. 211, §3 -
Alleged error in Probate &
Family Court proceedings
Where a single justice rejected a petition
filed under G.L.c.211,§3,by an individual challenging
certain Probate & Family Court proceedings,the
single justice committed no abuse
of discretion or other error of law.
Affirmed.
Marides v.Rossi (Lawyers Weekly No.10-051-
06) (2 pages) (Rescript) (SJC) Appealed from a
decision issued by Spina, J., sitting as single justice.
Peter Marides, pro se; John N. Nestor and
Michael McMahon were present for the defendant
but did not argue (Docket No. SJC-09269)
(March 27, 2006).
G.L.c. 211, §3 -
Appointment of counsel
Where an individual filed a petition under
G.L.c. 211, §3, challenging a denial of his request
to proceed pro se and the appointment
of counsel for him,a single justice correctly denied
the petition in light of the petitioner’s inability
to demonstrate that no adequate alternative
remedy existed for him.
Glawson v.Commonwealth (No.2) (Lawyers
Weekly No. 10-186-05) (2 pages) (Rescript)
(SJC) Appealed from a decision issued by Ireland,
J., sitting as single justice. Richard Glawson,
pro se, submitted a brief (Docket No. SJC-
09553) (Dec. 12, 2005).
G.L.c. 211, §3 - Posting of bond
Where a petitioner sought relief under G.L.c.
211, §3, from a Superior Court judge’s denial of
the petitioner’s motion for an order requiring
the plaintiffs in a special permit case to post a
cash or surety bond, the petitioner’s request for
relief was rightly rejected in light of the fact that
he had other adequate available means of appeal.
Mirrione,trustee,v.Jacobs,et al.(Lawyers
Weekly No.10-028-06) (2 pages) (Rescript) (SJC)
Appealed from a decision issued by Greaney, J.,
sitting as single justice.Edmund A.Allcock for the
plaintiff (Docket No. SJC-09601) (Feb. 13, 2006).
G.L.c. 211, §3 -
Pretrial detainee - Transfer
Where a petitioner sought relief, pursuant
to G.L.c. 211, §3, from an order transferring
him from a county jail to a state correctional
facility, the petition was properly denied because
(1) the transfer was authorized under
G.L.c.276,§52A and (2) the petitioner had other
adequate avenues for seeking relief.
MacDougall v.Commonwealth (Lawyers Weekly
No. 10-140-06) (12 pages) (Cordy, J.) (SJC) Case
considered by Ireland,J.,sitting as single justice.Peter
M. Onek and John Reinstein for Committee for
Public Counsel Services and another;Brian A.Wilson
for the commonwealth;Mark MacDougall,pro
se, submitted a brief; Nancy Ankers White and
William D.Saltzman for Commissioner of Correction,
amicus curiae, submitted a brief (Docket No.
SJC-09509) (Aug. 28, 2006).
G.L.c. 211, §3 - Protective order
Where an individual petitioned a single justice
for relief from a certain protective order,
the single justice acted permissibly in denying
the petition on the ground of an adequate alternative
avenue of relief.
Ray v. Commonwealth (Lawyers Weekly No.
10-112-06) (2 pages) (Rescript) (SJC) Appealed
from a decision issued by Spina,J.,sitting as single
justice. Willie J. Davis for the petitioner
(Docket No. SJC-09671) (June 26, 2006).
G.L.c. 211, §3 - ‘Statute
of limitations’claim
Where (1) a Superior Court judge rejected a
petitioner’s claim that an indictment was barred
by the statute of limitations, (2) the petitioner
sought relief from a single justice of the present
court and (3) the single justice denied the petitioner
relief, we conclude that the single justice
acted correctly, as the petitioner failed to meet
his burden of proving that he lacked an adequate
alternative to relief under G.L.c. 211, §3.
Ackerman v.Commonwealth (Lawyers Weekly
No. 10-013-06) (2 pages) (Rescript) (SJC) Appealed
from a decision issued by Greaney, J., sitting
as single justice.Christopher S.Skinner for the
plaintiff (Docket No. SJC-09578) (Jan. 18, 2006).
G.L.c. 211, §3 - Stay of
execution of sentence
Where a single justice of the present court
denied an individual’s motion for stay of execution
of sentence,the single justice did not err
in declining to release the man especially in
light of that individual’s long criminal record.
Christian v. Commonwealth (Lawyers Weekly
No.10-044-06) (2 pages) (Rescript) (SJC) Appealed
from a decision issued by Greaney,J.sitting as single
justice.James L.Rogal for the plaintiff;Susanne
G. Reardon for the commonwealth (Docket No.
SJC-09470) (March 14, 2006).
G.L.c. 211, §3 petition -
Appeal bond
Where a petitioner sought relief under G.L.c.
211,§3 from a Superior Court order declining
to waive an appeal bond in connection with an
appeal from a summary process judgment, a
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Continued from page B1
single justice’s decision to deny the petition
should be affirmed, as the proper course for
the petitioner to have followed, if she wished
further to challenge the bond,“was to refuse to
pay the bond, suffer the dismissal of her summary
process appeal, and then appeal to the
Appeals Court (on the limited bond issue)
from the order of dismissal.”
Erickson v.Somers,et al.(Lawyers Weekly No.
10-072-06) (2 pages) (Rescript) (SJC) Petition
heard by Cordy, J., sitting as single justice. Heidi
K. Erickson, pro se; Norma B. Somers, pro se
(Docket No. SJC-09336) (April 21, 2006).
G.L.c. 211, §3 petition -
Appealable order
Where a Superior Court judge appointed a
receiver to sell condominium units subject to
various alleged outstanding debts,a G.L.c.211,
§3 petition challenging the judge’s order was
correctly denied on the ground that the order
was appealable under the doctrine of present
execution.
Colomba, et al. v. DWC Associates, LLC,
trustee (Lawyers Weekly No. 10-109-06) (2
pages) (Rescript) (SJC) Petition heard by Greaney,
J., sitting as single justice. David M. Mc-
Glone for Gaetano Colomba; Robert S. Wolfe
for Blanca Martinez and others (Docket No.
SJC-09707) (June 23, 2006).
G.L.c. 211, §3 petition -
Condominium
Where petitioners sought review, under
G.L.c. 211, §3, of a number of rulings concerning
a condominium dispute, the petition
was properly denied on the ground that none
of the petitioners’ claims are appropriate for
G.L.c. 211, §3 review.
Scott-Jones, et al. v. Lu, et al. (Lawyers Weekly
No. 10-110-06) (2 pages) (Rescript) (SJC) Petition
heard by Greaney, J., sitting as single justice.
Diane Scott-Jones and John E. Jones Jr., pro
se, submitted a memorandum of law (Docket
No. SJC-09710) (June 23, 2006).
G.L.c. 211, §3 petition -
Criminal complaint
Where a defendant filed a G.L.c.211,§3 petition
after his motion to dismiss a criminal
complaint was denied, a single justice committed
no error in denying the petition in light
of other available remedies.
Aldrich v. Commonwealth (Lawyers Weekly
No. 10-031-06) (2 pages) (Rescript) (SJC) Appealed
from a decision by Spina,J.,sitting as single
justice. Robert Aldrich, pro se (Docket No.
SJC-09572) (Feb. 14, 2006).
G.L.c. 211, §3 petition -
Double jeopardy
Where a petitioner pleaded guilty to Norfolk
County indictments while other indictments
in Suffolk and Middlesex Counties were
pending, these circumstances did not amount
to a double jeopardy violation.
Glawson v. Commonwealth, et al. (No. 1)
(Lawyers Weekly No. 10-185-05) (3 pages) (Rescript)
(SJC) Appealed from a decision by Ireland,J.,sitting
as single justice.Susanne G.Reardon
on brief for the commonwealth and others
(Docket No. SJC-09424) (Dec. 12, 2005).
G.L.c. 211, §3 petition -
Single justice
Where a petitioner sought relief from a single
justice pursuant to G.L.c. 211, §3, an order
denying the petition should be affirmed in light
of other available avenues for obtaining the requested
relief.
Gianopoulos v.Clerk-Magistrate of the Attleboro
Division of the District Court, et al.
(Lawyers Weekly No. 10-030-06) (2 pages) (Rescript)
(SJC) Appealed from a decision by
Cowin, J., sitting as single justice. Peter A. Gianopoulos
Jr., pro se, submitted a brief (Docket
No. SJC-09640) (Feb. 14, 2006).
G.L.c. 211, §3 petition
Where (1) a District Court judge entered a
judgment against a petitioner, (2) a motion to
extend the time to file a notice of appeal was
denied and (3) the petitioner then sought relief
under G.L.c. 211, §3, the petition was correctly
denied by a single justice based on the
availability of other adequate avenues of relief
Marnerakis v.Phillips,Silver,Talman,Aframe
& Sinrich,P.C.(Lawyers Weekly No.10-018-06)
(3 pages) (Rescript) (SJC) Petition heard by Ireland,
J., sitting as single justice. Costas Marnerakis,
pro se; Jessica L. Godfrey for the defendant
(Docket No. SJC-09398) (Jan. 23, 2006).
G.L.c. 211, §3 petition
Where a petitioner sought relief under G.L.c.
211, §3 in connection with the defendant society’s
seizure of her animals, an order denying
the petition should be affirmed because of the
petitioner’s noncompliance with S.J.C.Rule 2:21.
Pina v.Massachusetts Society for the Prevention
of Cruelty to Animals (Lawyers Weekly No.
10-090-06) (2 pages) (Rescript) (SJC) Petition
heard by Greaney,J.,sitting as single justice.Timothy
W. Mungovan and Stephen M. LaRose for
the defendant; Patricia Renee Pina, pro se
(Docket No. SJC-09466) (May 19, 2006).
G.L.c. 211, §3 petition
Where a plaintiff sought relief under G.L.c.
211, §3 from an Appeals Court decision ordering
the entry of judgment for the defendant
on the ground of qualified immunity, a single
justice acted properly in denying the G.L.c.211,
§3 petition in light of the fact that the plaintiff
could have, but did not, seek further appellate
review of the Appeals Court decision.
“... Relief pursuant to G.L.c. 211, §3, is not
available where the petitioner can seek the requested
relief by other adequate and effective
avenues. ...”
‘Abdullah v.Secretary of Public Safety (Lawyers
Weekly No.10-130-06) (2 pages) (Rescript) (SJC)
Petition heard by Cordy,J.,sitting as single justice.
‘Omar ‘Abdullah,pro se,submitted a brief (Docket
No. SJC-09588) (Aug. 3, 2006).
G.L.c. 211, §3 petition
Where petitioners sought relief pursuant to
G.L.c. 211, §3, the petition was correctly denied
by a single justice based on the availability
of other avenues of relief.
Harrison, et al. v. Roncone, et al. (Lawyers
Weekly No.10-098-06) (3 pages) (Rescript) (SJC)
Petition heard by Spina,J.,sitting as single justice.
John L. Diaz and Robert O. Berger for the plaintiffs;
Terrance J. Hamilton for the defendants
(Docket No. SJC-09442) (June 15, 2006).
G.L.c. 211, §3 petition
Where petitioners sought relief under G.L.c.
211,§3 from certain orders by a Superior Court
judge, a single justice acted properly in denying
that petition in light of the fact that the Superior
Court orders may eventually be challenged
on direct appeal.
Farahani, et al. v. Hingham Mutual Fire Insurance
Co., et al. (Lawyers Weekly No. 10-014-
06) (2 pages) (Rescript) (SJC) Petition heard by
Sosman,J.,sitting as single justice.Ghodrat Farahani,
pro se, submitted a brief (Docket No. SJC-
09428) (Jan. 18, 2006).
G.L.c. 211, §3
Where a single justice denied, without a
hearing, an individual’s petition for relief under
G.L.c. 211, §3, the single justice acted correctly
in light of the fact that the petitioner had
an adequate alternative remedy.
Tavares v. Commonwealth (Lawyers Weekly
No. 10-132-06) (Rescript) (SJC) Appealed from
a decision issued by Greaney, J., sitting as single
justice. Daniel D. Tavares, pro se (Docket No.
SJC-09709) (Aug. 10, 2006).
G.L.c. 211, §3
Where a single justice has denied an individual’s
request for relief under G.L.c. 211, §3,
we hold (1) that the single justice has acted
within his discretion in light of the availability
of other adequate remedies and should have
his decision affirmed,but also (2) that the present
matter should be remanded to the county
court for reconsideration as a petition under
G.L.c. 278, §33E.
Allen v. Commonwealth (Lawyers Weekly
No. 10-050-06) (2 pages) (Rescript) (SJC) Appeal
of a decision issued by Cordy, J., sitting as
single justice.William J. Allen, pro se; Timothy
J. Cruz and Carolyn A. Burbine for the commonwealth
(Docket No. SJC-09220) (March
27, 2006).
Mootness
Where a murder defendant filed a petition
challenging various discovery orders, an appeal
of a single justice’s order denying the petition
must be dismissed as moot in light of
the fact that the defendant has since been
convicted.
Sliech-Brodeur v. Commonwealth (Lawyers
Weekly No. 10-108-06) (2 pages) (SJC) Petition
heard by Spina, J., sitting as single justice John
M. Thompson and Linda J. Thompson, pro se,
submitted a memorandum of law (Docket No.
SJC-09674) (June 23, 2006).
Mootness -
Appointment of counsel
Where a petitioner argues that a single justice
erred in declining to appoint counsel to assist
the petitioner with his appeal from an order
denying his motion for a new trial in an
underlying criminal case,the petition must be
denied as moot in light of the fact that the appeal
from the order denying the motion for a
new trial has been resolved.
Ewing c. Commonwealth (Lawyers Weekly
No. 10-201-05) (2 pages) (Rescript) (SJC) Appealed
from a decision by Cowin, J., sitting as
single justice. Shannon Ewing, pro se (Docket
No. SJC-09364) (Dec. 30, 2005).
Mootness -
G.L.c. 211, §3 Petition
Where a plaintiff filed a G.L.c.211,§3 petition
seeking review of a Superior Court judge’s denial
of the plaintiff’s request to proceed anonymously
in a suit against the defendant physician,
an appeal from a single justice’s order denying
the petition must be dismissed as moot in light
of the fact that the plaintiff has filed an amended
complaint using his true name.
Doe v. Chapman (Lawyers Weekly No. 10-
161-05) (2 pages) (Rescript) (SJC) Petition heard
by Sosman, J., sitting as single justice. Robert C.
Gabler and Carmen L. Durso for the plaintiff
(Docket No. SJC-09452) (Oct. 14, 2005).
Mootness - Motion to vacate
Where a petitioner unsuccessfully sought
relief under G.L.c. 211, §3 after the District
Court failed to rule on his motion to vacate
G.L.c. 209A orders, his appeal of the denial of
the G.L.c. 211 petition must be dismissed as
moot in light of the fact that the District has
acted on his motion.
Santiago v.Young (Lawyers Weekly No.10-049-
06) (2 pages) (Rescript) (SJC) Petition heard by Ireland,
J., sitting as single justice. William Santiago,
pro se (Docket No. SJC-09389) (March 24, 2006).
Mootness - Petition
under G.L.c. 211, §3 - SDP
Where a petitioner sought an order setting a
trial date under G.L.c. 123A, §9, the petitioner’s
appeal of a single justice’s decision denying the
petition must be dismissed as moot in light of
the fact that a trial date has been set.
Pentlarge v.Commonwealth (Lawyers Weekly
No. 10-159-05) (2 pages) (Rescript) (SJC) Petition
heard by Cowin,J.,sitting as single justice.
John G. Swomley for the plaintiff (Docket No.
SJC-09468) (Oct. 5, 2005).
‘Motion for leave
to file appeal late’
Where a petitioner, having pled guilty to numerous
offenses in 1998,filed a “Motion for Leave
to File Notice of Appeal Late,” a single justice acted
properly by denying the request for relief on the
ground that the petitioner “cannot demonstrate
the absence of adequate alternative remedies.”
Fernandez v.Commonwealth (Lawyers Weekly
No. 10-169-05) (2 pages) (Rescript) (SJC) Petition
heard by Spina, J., sitting as single justice
(Docket No. SJC-09561) (Nov. 17, 2005).
Petition - G.L.c. 211, §3
Where a petitioner sought relief under 211,§3
in connection with his sentencing, the petition
was correctly denied on the ground that the petitioner
had obtained appellate review of his claim.
Cepulonis v. Commonwealth (Lawyers Weekly
No. 10-069-06) (2 pages) (Rescript) (SJC) Petition
heard by Cowin,J.,sitting as single justice.
Richard Cepulonis, pro se (Docket No. SJC-
09627) (April 21, 2006).
Petition for extraordinary
relief - G.L.c. 211, §3
Where a petitioner sought relief under G.L.c.
211, §3, we conclude that a single justice acted
correctly in denying the petition based on the
availability of adequate relief through the normal
appellate process.
Votta v. Commonwealth (Lawyers Weekly No.

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September 25, 2006 | Massachusetts Lawyers Weekly | B3
10-154-05) (2 pages) (Rescript) (SJC) Petition heard
by Spina, J., sitting as single justice. John C. Votta
Jr.,pro se;Jane L.Fitzpatrick for the commonwealth
(Docket No. SJC-09456) (Sept. 19, 2005).
Petition for writ of mandamus
Where an individual petitioned a single justice
for a writ of mandamus, the single justice
properly denied the request, as (1) the petitioner
was seeking to compel the Appellate Division
and the Attorney General to perform
discretionary acts and (2) mandamus relief is
appropriate only to compel the performance
of ministerial acts, not discretionary ones.
Murray v. Commonwealth, et al. (Lawyers
Weekly No.10-131-06) (3 pages) (Rescript) (SJC)
Appeal of a decision issued by Ireland,J.,sitting as
single justice. James Murray, on brief, pro se; Susanne
G.Reardon,on brief,for the commonwealth
(Docket No. SJC-09550) (Aug. 10, 2006).
Single justice -
New trial motion
Where a single justice has rejected a defendant’s
request for leave to appeal a denial of his new trial
motion,the single justice has acted permissibly
under the “gatekeeper” provisions of G.L.c. 278,
§33E, and her decision will not be disturbed.
Commonwealth v.Robles (Lawyers Weekly No.
10-189-05) (2 pages) (Rescript) (SJC) Appealed
from a decision issued by Sosman,J.,sitting as single
justice. Paul Robles, pro se, submitted a brief
(Docket No. SJC-09595) (Dec. 13, 2005).
Single justice opinion -
Adequate routes of relief
Where a single justice denied, without a
hearing, a petition filed under G.L.c. 211, §3,
the single justice acted properly in light of the
PROFILES OF THE JUSTICES
petitioner’s failure to demonstrate a lack of other
adequate routes of relief.
Scott v. District Attorney for the Norfolk District
(Lawyers Weekly No. 10-188-05) (1 page)
(Rescript) (SJC) Appealed from a decision issued
by Greaney, J., sitting as single justice. Lorenzo
Q.Scott,pro se,submitted a brief; Robert C.Cosgrove
submitted a brief for the commonwealth
(Docket No. SJC-09490) (Dec. 12, 2005).
Single justice’s opinion -
New trial motion
Where a single justice refused a defendant
convicted of first-degree murder and armed
JUSTICE JOHN
M. GREANEY
Appointed to SJC: 1989
Will reach retirement age: 2009
Majority opinions written this year: 22
Dissenting opinions written this year: 3
Total dissenting votes cast: 4
Notable decision: Care and Protection of
Sharlene (Lawyers Weekly No. 10-010-
06), which held that the stepfather of a
critically injured child in DSS custody
had no standing to challenge an order to
withdraw life support.
robbery leave to appeal a denial of his new trial
motion to the full Supreme Judicial Court,
the single justice acted permissibly and his decision
will be affirmed.
Commonwealth v.Herbert (Lawyers Weekly No.
10-187-05) (1 page) (Rescript) (SJC) Appealed from
a decision issued by Greaney,J.,sitting as single justice.Roger
C.Herbert,pro se,submitted a brief;John
P. Zanini submitted a brief for the commonwealth
(Docket No. SJC-09334) (Dec. 12, 2005).
Single justice’s order - Certiorari
Where the petitioners have appealed from
a single justice’s decision, the appeal must be
rejected because the single justice committed
no error of law or abuse of discretion in denying
the petitioners’request for relief in the nature
of certiorari.
Picciotto, et al. v. Chief Justice of the Superior
Court (Lawyers Weekly No.10-076-06) (3 pages)
(Rescript) (SJC) Appealed from a judgment issued
by Greaney,J.,sitting as single justice.Stefano Picciotto,
pro se; Maryanne Reynolds Martin for the
respondent (Docket No.SJC-0993) (May 2,2006).
Arbitration
Out-of-state counsel
Where a single justice denied the plaintiffs’
request for declaratory relief regarding the
right of an attorney not licensed in Massachusetts
to represent the defendants,the single justice
was warranted in denying the plaintiffs
their requested relief.
Mscisz, et al. v. Kashner Davidson Securities
Corp., et al. (Lawyers Weekly No. 10-053-06) (3
pages) (Rescript) (SJC) Appealed from a decision
by Cordy,J.,sitting as single justice.William P.Corbett
Jr.for the plaintiffs;Richard J.Babnick Jr.,Marc.
J. Ross and Howard M. Smith for the defendants;
the following submitted briefs for amici curiae:Timothy
P. Burke, Matthew C. Applebaum, Katherine
W. Grearson, Richard A. Johnston, Mark C. Fleming
and James S. Goldman for Boston Bar Association;
Timothy P. Burke and Matthew C. Applebaum
for Securities Industry Association;Andrew
R.Grainger,Martin J.Newhouse and Ben Robbins
for New England Legal Foundation (Docket No.
SJC-09529) (March 28, 2006).
Sanctions - Discovery -
Out-of-state counsel
Where a plaintiff has challenged an arbitration
award, the appeal must fail, as (1) the fact
that the defendant’s attorney was not licensed to
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practice law in Massachusetts does not render
the award void and (2) the arbitration panel acted
permissibly by ordering the plaintiff to pay
monetary sanctions for a discovery violation.
Superadio Limited Partnership v.Winstar Radio
Productions, LLC (Lawyers Weekly No. 10-
052-06) (20 pages) (Greaney, J.) (Spina, J., with
whom Cowin, J., joins, concurring in part and
dissenting in part) (SJC) Case heard by Fecteau,
J., in Superior Court. John O. Mirick and Jessica
H. Munyon for the plaintiff; John D. Geelan
and Michelle M. Hansen for the defendant; the
following submitted briefs for amici curiae: Timothy
P. Burke, Matthew C. Applebaum, Katherine
W. Grearson, Richard A. Johnston, Mark C.
Fleming and James S. Goldman for Boston Bar
Association; Timothy P. Burke and Matthew C.
Applebaum for Securities Industry Association;
Andrew R. Grainger, Martin J. Newhouse and
Ben Robbins for New England Legal Foundation
(Docket No. SJC-09542) (March 28, 2006).
Attorneys
Disbarment - Client’s
uncorroborated claim
Where an attorney has been disbarred, the
disbarment order must be upheld based on evidence
of misconduct.
In the Matter of: Dasent, Carlton J. (Lawyers
Weekly No. 10-071-06) (4 pages) (Rescript)
(SJC) Appealed from a decision by Cowin,J.,sitting
as single justice. James S. Dilday for the respondent;
Daniel C. Crane, Bar Counsel, and
Dorothy Anderson, Assistant Bar Counsel
(Docket No. SJC-09515) (April 21, 2006).
Disbarment - Overbilling -
Issue preclusion
Where a client obtained over $800,000 in
damages in a federal court action against an
attorney, the attorney should be disbarred
based on his misconduct.
In the Matter of:Goldstone,Daniel W.(Lawyers
Weekly No.10-192-05) (24 pages) (Cordy,J.) (SJC)
Case reported by Spina, J., sitting as single justice.
David G. Hanrahan for the respondent; Dorothy
Anderson,Assistant Bar Counsel (Docket No.SJC-
09453) (Dec. 16, 2005).
Discipline - Corporate funds
Where the Board of Bar Overseers has recommended
that an attorney be suspended for
two years,the recommendation should be adopted
based on evidence that the attorney temporarily
transferred to his own use $130,000 in
assets of a corporation for which he was serving
as chief executive officer and sole director.
In the Matter of Barrett,Donal B.(Lawyers Weekly
No. 10-136-06) (22 pages) (Spina, J.) (SJC) Case
heard by Greaney, J., sitting as single justic. Donal
B. Barrett, pro se; Robert I. Warner, Assistant Bar
Counsel (Docket No. SJC-09508) (Aug. 16, 2006).
Discipline - Criticism of judge
Where an attorney has appealed a single justice’s
order disbarring him,the appeal must fail
because the single justice committed no error
of law or abuse of discretion.
In reaching this conclusion,we hold that the
attorney lacked an objectively reasonable basis
for his public statements critical of a judge.
In the Matter of: Cobb, Matthew (Lawyers
Weekly No. 10-182-05) (44 pages) (Spina, J.)
(SJC) Case heard by Greaney, J., sitting as single
justice.Case submitted on briefs; Matthew Cobb,
pro se; Daniel C. Crane, Bar Counsel, and Jane
R.Rabe,Assistant Bar Counsel (Docket No.SJC-
09333) (Dec. 8, 2005).
Discipline - Practice of
law during suspension
Where an attorney,adjudicated in contempt
of an order suspending him from the practice
of law, was given an additional period of suspension,
that decision was proper in light of
the justice’s conclusion that the attorney rendered
legal services to two clients after the effective
date of his suspension.
In the Matter of: Shaughnessy, William H.
(Lawyers Weekly No. 10-070-06) (2 pages) (Rescript)
(SJC) Appealed from a decision by Sosman,
J.,sitting as single justice.William H.Shaughnessy,
pro se; Susan A. Strauss Weisberg, Assistant Bar
Counsel (Docket No.SJC-09560) (April 21,2006).
Fees - Prevailing party -
Governmental opponent
Where a plaintiff sought counsel fees in connection
with a suit brought under federal law
against the defendant Massachusetts Department
of Mental Retardation,an order denying
that request must be affirmed based on U.S.
Supreme Court precedent.
Newell v. Department of Mental Retardation
(Lawyers Weekly No.10-046-06) (34 pages) (Marshall,
C.J.) (SJC) Case tried before Fahey, J.; motion
for attorney’s fees heard by her and complaint
for contempt also heard by her. Daniel S. Sharp
and Elaine Whitfield Sharp for the plaintiff;Ronald
F.Kehoe and Jacquelyn Berman for the defendant
(Docket No. SJC-09439) (March 20, 2006).
Fee-sharing agreement -
Referral - Client’s written consent
Where a judge ordered the defendant attorneys
to pay the plaintiff attorney one-third of
the fees earned in representing a client referred
to the defendants by the plaintiff,this order was
proper in light of an oral fee-sharing agreement
between the parties.
“We also decide that hereafter, in order to
satisfy professional ethical requirements,
lawyers who participate in a fee-sharing agreement
must obtain the client’s consent in writing
before the referral is made.”
Saggese v.Kelley,et al.(Lawyers Weekly No.10-
180-05) (17 pages) (Spina,J.) (SJC) Case heard by
Sanders,J.;motion to alter or amend the judgment
also heard by her. H. Reed Witherby for the defendants;Robert
D.Cohan for the plaintiff (Docket
No. SJC-09484) (Nov. 30, 2005).
Misconduct - Discipline
Where (1) the hearing committee of the Board
of Bar Overseers found that a respondent attorney
had engaged in conduct characterized as involving
“clear,personal conflicts of interest with
elderly, unsophisticated and vulnerable clients”
and (2) a divided Board then recommended that
the respondent be suspended from the practice
of law for two years,we conclude that a more severe
sanction is warranted and therefore will order
that the respondent be indefinitely suspended
from the practice of law.
In the Matter of: Lupo, Robert N. (Lawyers
Weekly No. 10-127-06) (25 pages) (Marshall,
C.J.) (SJC) Case reported by Greaney, J., sitting
as single justice. John W. Marshall, Asst. Bar
Counsel; Edward Foye, Heidi A. Nadel and Brian
J. Kelly for the respondent (Docket No. SJC-
09686) (July 28, 2006).
Civil practice
Assignment -
Contractual indemnification
Where a general contractor assigned its contractual
indemnification and breach of contract
claims against its subcontractor to an employee
of the subcontractor who was injured on the job,
we hold that the assignment was valid.
Spellman, et al. v. Shawmut Woodworking &
Supply,Inc.(Lawyers Weekly No.10-001-06) (14
pages) (Greaney, J.) (SJC) Motion to amend and
dismiss third-party complaint heard by Fahey,J.,
and questions law reported by her to the Appeals
Court; SJC transferred the case on its own initiative.
Andrew S. Wainwright for the plaintiffs;
Mark B. Lavoie for the defendant; John B. Glynn
and William T. Harrington for third-party defendant
East Coast Fireproofing, Inc.; Myles W.
McDonough submitted a brief for Associated
Subcontractors of Massachusetts,Inc.,amicus curiae
(Docket No. SJC-09503) (Jan. 3, 2006).
Discovery - Sexual abuse
charges - Videotaped interviews
Where two plaintiff minors, having filed a
civil suit over alleged sexual abuse they suffered
at school,requested copies of their videotaped
interviews conducted during the course
of a now-concluded criminal investigation into
their abuse allegations, an order allowing the
discovery request should be affirmed, as the
district attorney for the northwestern district
has failed to show that the videotaped evidence
is exempt from disclosure under G.L.c. 4, §7.
In the Matter of a Subpoena Duces Tecum
(Lawyers Weekly No.10-002-06) (10 pages) (Ireland,J.)
(SJC) Case reported by Cowin,J.,sitting
as single justice.Judith Ellen Pietras for the commonwealth;
Joan A. Antonino, for John Doe &
others,submitted a brief (Docket No.SJC-09324)
(Jan. 5, 2006).
Interpreter - Immigrant
Where (1) a jury found for the defendant in a
personal injury case concerning machinery and
(2) the plaintiff now claims that she should have
been granted an interpreter,that argument must
be rejected on the ground that the plaintiff does
not qualify as a non-English speaker.
Crivello, et al. v. All-Pak Machinery Systems,
Inc., et al. (Lawyers Weekly No. 10-086-06) (16
pages) (Ireland, J.) (SJC) Case tried before
Whitehead, J.; motion for a new trial heard by
him. Paul L. Kenny and Richard C. Chambers
Jr. for the plaintiff; Myles W. McDonough for
Pacemaker Packaging Corp.; Nicholas Grimaldi
for All-Pak Machinery Systems, Inc. (Docket
No. SJC-09525) (May 16, 2006).
Petition for writ of certiorari
Where a single justice has denied a petitioner’s
“Complaint in the Nature of a Petition for a Writ
of Certiorari and to Invoke the General Superintendence
of the Court,” we hold that the single
justice acted permissibly, as part of the petition
should have been pursued by means of a direct
appeal and the relief sought by the remainder of
the petition was not supported by the record.
Feinman v.New Bedford Division of the District
Court Department, et al. (Lawyers Weekly No. 10-
085-06) (2 pages) (Rescript) (SJC) Petition heard
by Cowin,J.,sitting as single justice.Alex Feinman,
pro se (Docket No. SJC-09238) (May 15, 2006).
Probate rules - Exhaustion
Where a will proponent desires to move for
summary judgment under Rule 27B of the
Rules of the Probate Court, he or she may do
so without first having exhausted the procedures
set forth in Rule 16.
O’Rourke v. Hunter (Lawyers Weekly No. 10-
094-06) (23 pages) (Marshall, C.J.) (SJC) Case
heard by Roach, J., on a motion for summary
judgment. Barry A. Bachrach for the plaintiff;
Michael J. Traft for the defendant (Docket No.
SJC-09637) (May 31, 2006).
SDP - Deadline
Where the commonwealth’s petition for the
civil commitment of the defendant as a sexually
dangerous person was dismissed, the dismissal
order should be affirmed on the ground
that the petition did not comply with the 60-
day deadline of G.L.c. 123A, §13(a).
Commonwealth v.Parra (Lawyers Weekly No.
10-163-05) (8 pages) (Ireland,J.) (SJC) Following
an order of temporary commitment issued by
Kottmyer, J., a motion to dismiss the petition was
heard by Fahey, J., and a motion for reconsidera-

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tion was also heard by her. A.J. Camelio for the
commonwealth; David Hirsch for the defendant
(Docket No. SJC-09552) (Nov. 2, 2005).
SDP commitment statute
Where a trial court judge has reported the correctness
of her ruling and has asked “Does the
Supreme Judicial Court’s holding in Commonwealth
v. Knowlton, 379 Mass. 479 (1979), prescribing
substantive procedures and protections
for incompetent respondents in [‘sexually dangerous
person’] proceedings under the now repealed
§6 of c. 123A, apply to a proceeding under
§12 of c.123A?,”we respond in the negative.
Commonwealth v. Nieves (Lawyers Weekly
No. 10-074-06) (22 pages) (Cowin, J.) (SJC)
Questions of law reported by Fahey,J.; Supreme
Judicial Court, on its own initiative, transferred
case from Appeals Court.Lillian Cheng and Kate
Berrigan MacDougall for the commonwealth;
Mark J.Gillis for the defendant (Docket No.SJC-
09615) (April 27, 2006).
PROFILES OF THE JUSTICES
CHIEF JUSTICE MAR-
GARET H. MARSHALL
Appointed to SJC: 1996 (elevated to chief,
1999)
Will reach retirement age: 2014
Majority opinions written this year: 23
Dissenting opinions written this year: 1
Total dissenting votes cast: 5
Notable decision: Gasior v. Massachusetts
General Hospital (Lawyers Weekly No.
10-080-06), which determined that an
employee’s discrimination complaint alleging
wrongful termination under G.L.c.
151B survived the death of the employee.
chusetts Constitution by providing, prospectively,
that “the Commonwealth and its political
subdivisions shall define marriage only as
the union of one man and one woman,” the
plaintiff’s challenge must be rejected on the
ground that the proposal is not seeking reversal
of a judicial decision.
Schulman v. Attorney General, et al. (Lawyers
Weekly No.10-118-06) (17 pages) (Cordy,J.) (Greaney,
J. with whom Ireland, J., joins, concurring)
(SJC) Case reported by Spina, J., sitting as single
justice.Gary D.Buseck,Jennifer L.Levi and Mary
L.Bonauto for the plaintiff;Peter Sacks for the defendants;
Jordan W. Lorence, Dale Schowengerdt
and David R.Langdon for the interveners;the following
submitted briefs for amici curiae: Martin
M. Fantozzi and Kevin P. O’Flaherty for MassEquality
and others; Luke Stanton for Robert H.
Quinn and others;Robert D.Carroll,Christopher
C. Nee, & Anna-Marie L. Tabor for Scott Harshbarger
and others;C.Francis Tynan,pro se (Docket
No. SJC-09684) (July 10, 2006).
Civil rights
Privacy - Workplace -
Videotaping
Where a plaintiff employee of a state college
alleges that her right to privacy was violated by
videotape surveillance of her workplace in
1995, she is not entitled to relief under statutory
or constitutional law, as the plaintiff had
no objectively reasonable expectation of privacy
and the defendants are entitled to common-law
immunity.
Nelson v. Salem State College, et al. (Lawyers
Weekly No. 10-064-06) (21 pages) (Ireland, J.)
(SJC) Case heard by Kottmyer,J.,on a motion for
summary judgment. Jeffrey M. Feuer and Lee D.
Goldstein for the plaintiff; David R.Kerrigan and
Meredith A. Wilson for the defendants; the following
submitted briefs for amici curiae: Wayne
Soini and Jaime DiPaola for American Federation
of State, County & Municipal Employees,
Council 93,AFL-CIO; Mark P.Fancher for Maurice
and Jane Sugar Law Center for Economic and
Social Justice; Marc Rotenberg and Marcia Hofmann
for Electronic Privacy Information Center;
Jeremy Gruber for National Workrights Institute
(Docket No. SJC-09519) (April 13, 2006).
Constitutional
Double jeopardy - Mistrial
Where a defendant moved for dismissal of
criminal charges following a mistrial,that motion
was properly denied on the ground that the defendant
consented to the declaration of mistrial.
Pellegrine v.Commonwealth (Lawyers Weekly
No. 10-048-06) (3 pages) (Rescript) (SJC) Petition
heard by Cordy, J., sitting as single justice.
Lois J.Martin for the plaintiff; Jason Mohan and
Tracey A.Cusick for the commonwealth (Docket
No. SJC-09383) (March 24, 2006).
Same-sex marriage -
Initiative petition
Where a plaintiff challenges the Massachusetts
Attorney General’s certification of an initiative
petition that would amend the Massa-
Search and seizure -
Buccal swab
Where (1) the defendant,a married woman,
was indicted for the alleged rapes of two
teenaged boys, (2) the commonwealth asserted
that the sexual intercourse involved resulted
in the birth of a child by each complainant,
(3) the commonwealth filed motions in each
case to compel buccal swabs from the defendant,
the child and the complainant for the
purpose of DNA testing to determine whether,
in each case, the complainant is the father of
the child and (4) a Superior Court judge denied
the motions,we hold that the motion denials
must be vacated and a remand ordered.
Commonwealth v. Draheim (Lawyers Weekly
No. 10-113-06) (11 pages) (Cowin, J.) (SJC)
Continued on page B6

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Continued from page B5
Case reported by Sosman,J.,sitting as single justice.
Gail M. McKenna for the commonwealth;
Joseph F. Krowski Jr. and Jason C. Howard for
the defendant; Bethany C. Brown submitted a
brief for Kevin Draheim, amicus curiae (Docket
No. SJC-09584) (June 27, 2006).
Consumer protection
G.L.c. 93A - Causation - Loss
Where a defendant rental car company was
awarded summary judgment on the plaintiffs’
complaint under the consumer protection statute
(G.L.c. 93A), the judgment should be affirmed
because of the plaintiffs’inability to prove any loss
caused by the defendant’s failure to comply with
a state statute governing rental agreements.
Hershenow, et al. v. Enterprise Rent-A-Car
Company of Boston, Inc., et al. (Lawyers Weekly
No. 10-008-06) (32 pages) (Marshall, C.J.)
(Cowin, J., concurring) (Greaney, J., joined by
Spina,J.,dissenting) (SJC) Case heard by van Gestel,
J., on motions for judgment on the pleadings
and for summary judgment. John Roddy and
Elizabeth A. Ryan for the plaintiffs; Michael A.
Kahn, of California, M. Kay Martin, of California,and
John H.Henn for the defendants; the following
submitted briefs for amici curiae: Ben Robbins
and Andrew Grainger for New England
Legal Foundation; Stephen D. Poss and S. Jason
P.Baletsa for The Hertz Corporation and another
(Docket No. SJC-09359) (Jan. 17, 2006).
G.L.c. 93A - Injury - Rental car
Where a plaintiff filed suit alleging that the
defendant rental car company violated G.L.c.
93A by not displaying in a rental agreement
the statutorily required language regarding collision
damage waivers in a manner consistent
with the statute, a summary judgment for the
defendant should be affirmed on the ground
that the plaintiff suffered no injury cognizable
under G.L.c. 93A.
Roberts v. Enterprise Rent-A-Car Company
of Boston,Inc.(Lawyers Weekly No.10-009-06)
(7 pages) (Cowin, J.) (Greaney, J., joined by
Spina, J., concurring) (SJC) Case was heard by
van Gestel, J., on motions for judgment on the
pleadings and for summary judgment. John
Roddy and Elizabeth A. Ryan for the plaintiff;
Michael A.Kahn,of California,M.Kay Martin,
of California, and John H. Henn for the defendant;
the following submitted briefs for amici
curiae: Ben Robbins and Andrew Grainger for
New England Legal Foundation; Stephen D.Poss
and S. Jason P. Baletsa for The Hertz Corporation
and another (Docket No. SJC-09960) (Jan.
17, 2006).
Contract
Breach - Interior design
Where a judge ruled that a defendant engaged
in breach of contract by failing to pay
for certain interior design work provided by
the plaintiff firm, we hold that this ruling was
supported by the record and should be affirmed.
Mark Bombara Interior Design v. Bowler
(Lawyers Weekly No. 10-056-06) (14 pages)
(Spina, J.) (SJC) Case heard by Locke, J., in the
Superior Court. John N. Flanagan for the defendant;
Colleen C. Cook and Sarah M. Knoff
for the plaintiff (Docket No.SJC-09523) (March
30, 2006).
PROFILES OF THE JUSTICES
Corporate
Limitations - Tolling
Where (1) a closely held corporation was
dissolved and (2) the appellant,one of the four
shareholders, was awarded more than her pro
rata share of the assets but less than the amount
she sought, the judgment should be affirmed,
as the appellant’s request for a larger share of
assets was based on time-barred claims of
wrongdoing by the other shareholders.
Aiello, et al. v. Aiello, et al. (and a companion
case) (Lawyers Weekly No.10-133-06) (28 pages)
(Cordy, J.) (SJC) Cases heard by van Gestel, J., in
Superior Court. Jeffrey J. Upton for Joy Hyland;
W. Paul Needham and Mark A. Johnson for
RobertAiello;Howard M.Brown for Gerald Aiello
(Docket No. SJC-09626) (Aug. 11, 2006).
Criminal
Annoying or accosting behavior
Where a defendant was convicted of accosting
or annoying a person of the opposite
sex, the conviction should be affirmed based
on our conclusion that the defendant’s conduct
was offensive and disorderly within the meaning
of G.L.c. 272, §53.
Commonwealth v. Cahill (Lawyers Weekly
No.10-091-06) (9 pages) (Ireland,J.) (SJC) Case
heard by Greco, J., in District Court. Melissa J.
Garand for the defendant; Miriam S. Pappas
and Loretta M. Lillios for the commonwealth
(Docket No. SJC-09649) (May 19, 2006).
Armed assault with
intent to murder
Where (1) a defendant was convicted of
armed assault with intent to murder, (2) he
claimed on appeal that the judge erred in not
instructing the jury that malice,defined as “absence
of justification, excuse and mitigation,”
is an element of the offense and (3) he argued
that omission of the instruction created a substantial
risk of a miscarriage of justice because
his depressed mental state could constitute
mitigation that the commonwealth must disprove,
we hold that the Appeals Court acted
correctly in rejecting the defendant’s appeal.
Commonwealth v. Johnston (Lawyers Weekly
No. 10-066-06) (11 pages) (Cowin, J.) (SJC)
JUSTICE RODERICK
L. IRELAND
Appointed to SJC: 1997
Will reach retirement age: 2014
Majority opinions written this year: 24
Dissenting opinions written this year: 2
Total dissenting votes cast: 6
Notable decision: Nelson v. Salem State
College, et al. (Lawyers Weekly No. 10-
064-06), which found that a state college
employee's right to privacy was not violated
by videotape surveillance of her
workplace.
Case tried before Ford,J., in the Superior Court.
Daniel Bennett for the defendant; Katherine E.
McMahon for the commonwealth (Docket No.
SJC-09606) (April 14, 2006).
Armed assault with intent
to rob - Felony murder
Where a defendant has been convicted of
armed assault with intent to rob, we hold that
conviction must be vacated because it is duplicative
of another conviction for first-degree
murder on a theory of felony murder.
Commonwealth v. Rivera (Lawyers Weekly
No. 10-148-05) (33 pages) (Marshall, C.J.)
(Cowin, J., concurring in part) (Cordy, J., joined
by Greaney and Ireland, JJ., concurring) (SJC)
Ruth Greenberg for the defendant; Loretta M.
Lillios for the commonwealth (Docket No. SJC-
08717) (Sept. 7, 2005).
Armed robbery -
Photographs - Jury instructions
Where a defendant has appealed his convictions
for armed robbery while masked, assault
and battery and assault by means of a
dangerous weapon, we hold that the convictions
should stand, as the trial judge (1) committed
no abuse of discretion by admitting into
evidence five photographs of the defendant selected
by the victim at an out-of-court identification
procedure and (2) did not err in choosing
not to give a jury instruction requested by
the defendant about confidence and accuracy
in eyewitness identifications.
Commonwealth v.Cruz (Lawyers Weekly No.
10-196-05) (17 pages) (Spina, J.) (SJC) Cases
tried before Haggerty, J., in the Superior Court.
Benjamin H. Keehn for the defendant; Sheryl F.
Grant for the commonwealth (Docket No. SJC-
09499) (Dec. 21, 2005).
Assault and battery by means
of dangerous weapon - ‘Castle
law’defense statute
Where a defendant,who was convicted of assault
and battery by means of a dangerous
weapon, asserts that the trial judge acted impermissibly
in not giving a requested “castle law”
defense instruction,we hold that this claim must
be rejected because (1) the defendant’s actions
occurred on the open porch and outside stairs
of the relevant house and (2) the term “dwelling”
in the castle law defense statute (G.L.c.278,§8A)
does not encompass such areas.
Commonwealth v. McKinnon (Lawyers
Weekly No. 10-042-06) (10 pages) (Ireland, J.)
(SJC) Case tried before McGill, J.,in the District
Court. Karen Dean-Smith for the defendant;
Kimberly Rugo and Melissa J. Conroy for the
commonwealth (Docket No.SJC-09603) (March
14, 2006).
Attempting to burn building
Where a defendant has appealed his conviction
for attempting to burn a building, we
hold that the appeal must fail because no merit
exists to the defendant’s claims (1) that his
trial was invalid because the commonwealth
proceeded against him by way of complaint
even though he never executed a written waiver
of his right to indictment and (2) that the
trial judge erred in denying the defendant’s
motion to suppress his confession.
Commonwealth v. Peterson (Lawyers Weekly
No. 10-011-06) (11 pages) (Cordy, J.) (SJC) Pretrial
suppression motion heard by Curley, J., and
cases tried before him. Beth L. Eisenberg for the
defendant; Joseph A. Pieropan for the commonwealth
(Docket No. SJC-09482) (Jan. 17, 2006).
Bail - Revocation
Where (1) a defendant was released on bail
in connection with a Superior Court indictment,
(2) the bail was later revoked based on
new charges brought against the defendant in
District Court and (3) the defendant twice requested
in District Court that his bail be reinstated,the
District Court judges acted correctly
in denying that request on the ground that Superior
Court was the proper jurisdiction for
any reinstatement order.
Commonwealth v. Cargill (Lawyers Weekly
No. 10-172-05) (6 pages) (Greaney, J.) (SJC)
Questions of law reported by Lauriat, J., in Superior
Court. Beth L. Eisenberg for the defendant;
John P. Zanini and Joseph M. Ditkoff for
the commonwealth (Docket No. SJC-09373)
(Nov. 18, 2005).
Bail - Revocation
Where (1) a judge ordered a criminal defendant’s
bail revoked when the defendant was
charged with a separate unrelated offense and
(2) a different judge later entered an order vacating
the bail revocation order, the second
judge acted improperly under the bail statute
(G.L.c. 276, §58).
Commonwealth v. Pagan (Lawyers Weekly
No. 10-171-05) (19 pages) (Greaney, J.) (Cordy,
J., dissenting in part) (SJC) Case reported by
Cowin, J., sitting as single justice. Dean A. Mazzone
for the commonwealth; Dana Alan Curhan
and Brad Bennion for the defendant (Docket
No. SJC-09310) (Nov. 18, 2005).
Bail - Revocation
Where a mittimus was issued in District
Court after a defendant’s bail was ordered revoked,
the mittimus improperly served to vacate
the bail revocation order and accordingly
should be stricken.
Commonwealth v.Hall,et al.(Lawyers Weekly
No. 10-173-05) (3 pages) (Rescript) Petition
heard by Spina, J., sitting as single justice. Don-

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na Jalbert Patalano for the commonwealth;
David M.Lieber for the Boston Municipal Court
(Docket No. SJC-09386) (Nov. 18, 2005).
Burglary - Armed
assault in dwelling
Where (1) a defendant was convicted of burglary,armed
assault in a dwelling,armed assault
with intent to murder and assault and battery by
means of a dangerous weapon, (2) the Appeals
Court later reversed the judgments,concluding
that there was insufficient evidence to support
the verdicts, and (3) the commonwealth thereafter
applied successfully for further appellate review,
we hold, after careful consideration of the
transcripts and arguments of the parties, that,
“although the question is a close one, there was
sufficient evidence to support the verdicts.”
Commonwealth v.O’Laughlin (Lawyers Weekly
No.10-040-06) (34 pages) (Cowin,J.) (SJC) Motion
to dismiss heard by Curley, J., and the cases
were tried before him.Kenneth I.Seiger for the defendant;David
F.Capeless for the commonwealth
(Docket No. SJC-09587) (March 10, 2006).
Child’s statements
to pediatrician
Where a 6-year-old child made statements to
an emergency room pediatrician disclosing (in
a child’s terms) that she had been anally raped,
we hold that a Superior Court judge erred in allowing
the defendant’s motion to exclude such
statements from the evidence at his trial.
Commonwealth v.DeOliveira (Lawyers Weekly
No. 10-103-06) (18 pages) (Greaney, J,) (SJC)
Motion to dismiss heard by Quinlan, J.; application
for leave to prosecute interlocutory appeal allowed
by Sosman, J., in the Supreme Judicial
Court for the county of Suffolk and appeal reported
by her to Appeals Court; matter transferred
from the Appeals Court by the Supreme Judicial
Court on its own initiative. Thomas D.
Ralph for the commonwealth; Michael D. Brennan
for the defendant; Alice Ann Phillips and
Danica Szarvas-Kidd submitted a brief for American
Prosecutors Research Institute,amicus curiae
(Docket No. SJC-09608) (June 19, 2006).
Closing argument -
Child’s sexual knowledge
Where a defendant was convicted of child rape,
the convictions must be vacated because of prejudicial
error in the prosecutor’s closing argument.
Commonwealth v. Beaudry (Lawyers Weekly
No. 10-194-05) (17 pages) (Cowin, J.) (SJC)
Cases tried before Josephson, J., in Superior
Court.Jane Larmon White on appeal for the defendant;
Judith Ellen Pietras for the commonwealth
(Docket No.SJC-09567) (Dec.20,2005).
Community parole supervision
for life - Sex offender
Where community parole supervision for
life (CPSL) has been imposed on a defendant
convicted of indecent assault and battery on a
child under 14 years of age,the defendant must
be resentenced based on the unconstitutionality
of the CPSL statute.
Commonwealth v.Pagan (Lawyers Weekly No.
10-152-05) (20 pages) (Spina,J.) (SJC) Case tried
before Haggerty,J.,in Superior Court.Matthew V.
Soares for the defendant;Heather E.Hall and Kate
Berrigan MacDougall for the commonwealth
(Docket No. SJC-09332) (Sept. 14, 2005).
Competency examination -
Commonwealth’s expert
Where a judge ordered a criminal defendant,
who was found incompetent to stand trial by
a court-appointed expert, to submit to a second
competency examination by an expert of
the commonwealth’s choosing, this order
should be affirmed,as “there was neither abuse
of discretion nor any other error of law.”
Seng v.Commonwealth (Lawyers Weekly No.
10-190-05) (21 pages) (Marshall, C.J.) (SJC)
Case reported by Cowin, J., sitting as single justice.
Larry R. Tipton for the defendant; Loretta
M. Smith for the commonwealth (Docket No.
SJC-09467) (Dec. 15, 2005).
Conspiracy to commit larceny
of insurance companies
Where (1) computer files were seized from the
law firm for which a defendant attorney worked
and (2) he was subsequently convicted of conspiracy
to commit larceny of insurance companies,
we hold that the convictions may stand because:the
defendant lacked standing to challenge
the seizure of the computer files;the judge did not
violate the defendant’s right to a fair and impartial
jury by rulings the judge made during jury selection;and
the judge did not abuse his discretion
by refusing to declare a mistrial after a certain improper
remark was uttered by a witness.
Affirmed.
Commonwealth v.Bryant (Lawyers Weekly No.
10-139-06) (16 pages) (Ireland, J.) (SJC) Pretrial
suppression motions were heard by Bohn, J., and
the cases were tried before him.William S. Smith
for the defendant; David M. Lieber for the commonwealth;Bruce
P.Keller and Phillip R.Malone
submitted a brief for National Center for Missing
and Exploited Children,et al.,amici curiae (Docket
No. SJC-09673) (Aug. 25, 2006).
Corporate liability -
Homicide - Motor vehicle
Where a corporation was found guilty of
homicide by motor vehicle, the conviction
should be affirmed based on evidence that the
defendant’s agent negligently caused the death
of a police officer.
Commonwealth v. Angelo Todesca Corp.
(Lawyers Weekly No. 10-036-06) (38 pages)
(Spina,J.) (Cordy,J.,joined by Marshall,C.J.,and
Cowin,J.,dissenting) (SJC) Case tried before Connon,
J., in Superior Court. Julia K. Holler for the
commonwealth; Jeffrey T. Karp for the defendant
(Docket No. SJC-09457) (March 1, 2006).
Discovery - Crime scene
Where a defendant was indicted for rape of
a child with force in the complainant’s home and
assault and battery,we hold that a judge had the
authority to allow the defendant to have his investigator
and attorney inspect, measure and
photograph the crime scene but only after the
owner of the subject premises was given notice
and an opportunity to be heard.
Commonwealth v. Matis (Lawyers Weekly
No. 10-079-06) (8 pages) (Cordy, J.) (SJC) Case
reported by Greaney, J., sitting as single justice.
Judith Ellen Pietras for the commonwealth;
Mark A. Tanner for the defendant (Docket No.
SJC-09480) (May 10, 2006).
Dismissal of complaint -
Accord and satisfaction
Where a criminal complaint was dismissed
after the defendant and his accuser executed
an accord and satisfaction pursuant to G.L.c.
276,§55,the dismissal order should be upheld
despite the commonwealth’s challenge to the
validity of the statute.
Commonwealth v. Guzman (Lawyers Weekly
No. 10-054-06) (9 pages) (Ireland, J.) (SJC)
Motion to dismiss heard by Brant, J., in District
Court. Christopher W. Spring and Loretta M.
Lillios for the commonwealth; Joseph W. Monahan
III for the defendant; Daniel I.Smulow for
the intervener Attorney General; Nona E.Walker,
for Committee for Public Counsel Services,
amicus curiae, submitted a brief (Docket No.
SJC-09459) (March 29, 2006).
Dissemination of obscene
matter to minor - Intent
Where a defendant has appealed his conviction
for dissemination of matter harmful to
a minor, the appeal must fail, as no substantial
risk of a miscarriage of justice arose from the
trial judge’s failure to instruct the jury that the
dissemination must be the result of purposeful,
intentional conduct.
Commonwealth v. Belcher (Lawyers Weekly
No.10-083-06) (8 pages) (Ireland,J.) (SJC) Case
tried before Patrick F. Brady, J., in Superior
Court. Robert F. Shaw Jr. on appeal for the defendant;
Mary E. Lee for the commonwealth
(Docket No. SJC-09650) (May 12, 2006).
First-degree murder
Where a defendant has appealed his first-degree
murder conviction, we conclude that the
appeal must fail because the trial judge (1) committed
no reversible error in his evidentiary rulings,
(2) framed adequate jury instructions on
provocation and sudden combat,(3) acted permissibly
in refusing to instruct the jury on the
lesser included offense of assault and battery by
means of a dangerous weapon (a shod foot),
where the evidence did not provide a rational
basis for acquitting the defendant of the crime
charged and convicting him of the lesser included
offense, and (4) also acted permissibly
in deciding that the defendant was not entitled
to an instruction requiring specific unanimity,
as to the factors set forth in Commonwealth v.
Cunneen, 389 Mass. 216, 227 (1983), in determining
whether the alleged murder was committed
with extreme atrocity or cruelty.
Commonwealth v. Pov Hour (Lawyers Weekly
No. 10-023-06) (15 pages) (Greaney, J.) (SJC)
Case tried before Fishman, J., in the Superior
Court.Charles K.Stephenson for the defendant;
Loretta M.Smith for the commonwealth (Docket
No. SJC-09365) (Feb. 7, 2006).
First-degree murder -
Jury instructions
Where a defendant has appealed his firstdegree
murder conviction, we conclude that
the appeal must fail because no merit exists to
the defendant’s claim that the trial judge’s jury
instruction on malice and intoxication contained
significant errors creating a substantial
likelihood of a miscarriage of justice.
Commonwealth v. Oliveira (Lawyers Weekly
No.10-019-06) (18 pages) (Cordy,J.) (SJC) Case
tried before Kane, J., in the Superior Court. Eric
S.Brandt for the defendant; David B.Mark and
Alison R. Bancroft for the commonwealth
(Docket No. SJC-09146) (Jan. 23, 2006).
Grand jury - Spousal privilege
Where a judge permitted a grand jury witness
to refuse to testify based on the spousal
privilege (G.L.c. 233, §20), the judge’s ruling
must be reversed on the ground that the privilege
does not apply in grand jury proceedings.
In the Matter of a Grand Jury Subpoena
(Lawyers Weekly No. 10-106-06) (17 pages)
(Sosman, J.) (SJC) Case considered by Spina, J.,
sitting as single justice. John P. Zanini for the
commonwealth; Laurence Cote for the respondent
(Docket No. SJC-09714) (June 22, 2006).
Indecent assault and battery -
Duplicative convictions -
Lifetime parole supervision
Where a defendant was convicted of indecent
assault and battery on two children under
the age of 14,one of those convictions must
be vacated based on insufficient evidence.
Commonwealth v. Pillai (Lawyers Weekly No.
10-151-05) (28 pages) (Marshall,C.J.) (SJC) Pretrial
motion for joinder was heard by Connolly,J.;
the cases were tried before her as were certain posttrial
motions. James A. Reidy for the commonwealth;Michael
R.Schneider for the defendant on
appeal; Peter Onek, for Committee for Public
Counsel Services,amicus curiae,submitted a brief
(Docket No. SJC-09377) (Sept. 14, 2005).
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Continued from page B7
‘Ineffective assistance’claim
Where, after a defendant’s convictions were
affirmed on appeal,he filed a new trial motion
based on an assertion that his trial counsel had
provided ineffective assistance,a motion judge
erred in declining to hold a hearing on, or act
on, the defendant’s motion.
Remand ordered for further proceedings.
Commonwealth v.Zinser (Lawyers Weekly No.
10-093-06) (9 pages) (Cordy,J.) (SJC) Motion for
new trial considered by Lauriat, J., in the Superior
Court. Donald K. Freyleue for the defendant;
Loretta M.Lillios for the commonwealth;John M.
Thompson submitted a brief for Massachusetts
Association of Criminal Defense Lawyers, amicus
curiae;Eric Brandt submitted a brief for Committee
for Public Counsel Services,amicus curiae
(Docket No. SJC-09516) (May 25, 2006).
Jury instructions -
Witness identification -
Prosecutor’s closing
Where a defendant has appealed his first-degree
murder conviction, the appeal must fail, as
the defendant has not demonstrated the reversible
error resulted from the judge’s jury instructions
or the prosecutor’s closing argument.
Commonwealth v. Choeurn (Lawyers Weekly
No. 10-062-06) (21 pages) (Marshall, C.J.) (SJC)
Case tried before Fishman, J.; motion to set aside
the verdict or, in the alternative, for a new trial
heard by him. Ruth Greenberg on appeal for the
defendant; Loretta M. Smith for the commonwealth
(Docket No. SJC-09363) (April 12, 2006).
Motor vehicle -
Homicide - Life support
Where a defendant has been convicted of motor
vehicle homicide by negligent operation, the
PROFILES OF THE JUSTICES
conviction must be affirmed despite the defendant’s
assertion that the victim’s decision to be removed
from a ventilator following the car accident
relieved the defendant from criminal liability.
Commonwealth v. Carlson (Lawyers Weekly
No. 10-105-06) (13 pages) (Greaney, J.) (SJC)
Case tried before Abdella, J., in District Court.
Sean J. Gallagher on appeal for the defendant;
Ellyn H. Lazar-Moore for the commonwealth
(Docket No. SJC-09632) (June 21, 2006).
Murder - Armed robbery
Where a defendant has appealed his convictions
for murder, armed robbery and related
crimes,we hold that the appeal must be rejected
JUSTICE JUDITH
A. COWIN
Appointed to SJC: 1990
Will reach retirement age: 2012
Majority opinions written this year: 23
Dissenting opinions written this year: 0
Total dissenting votes cast: 4
Notable decision: Mason v. Coleman
(Lawyers Weekly No. 10-117-06), which
held that a divorced mother could be enjoined
from moving out of state with her
children if such an injunction was necessary
to protect the children’s best interests.
because (1) the commonwealth met its burden
of proving beyond a reasonable doubt that the
defendant’s waiver of his Miranda rights and his
subsequent confession were voluntary, (2) the
judge committed no abuse of discretion in denying
the defendant’s request for a jury instruction
concerning the absence of an electronic recording
of the defendant’s statement and (3) no reversible
error occurred in the judge’s instructions
on reasonable doubt or in the instructions on circumstantial
evidence and inferences.
Commonwealth v. O’Brian (Lawyers Weekly
No.10-005-06) (19 pages) (Ireland,J.) (SJC) Pretrial
suppression motion heard by Hillman, J.;
cases tried before Mulligan, J., in the Superior
Court.Michael Malkovich for the defendant; Ellyn
H. Lazar-Moore for the commonwealth
(Docket No. SJC-09253) (Jan. 10, 2006).
Murder - Confession -
Pretrial publicity
Where a defendant has been convicted of murder
in the first degree, the appeal must fail because
the court below did not err by (1) denying
the defendant’s motion to suppress his confession,(2)
refusing to exclude jurors who had been
exposed to any media publicity concerning the
case and (3) not repeating the charge to the jury
shortly after they had begun deliberations.
Commonwealth v. Leahy (Lawyers Weekly
No.10-183-05) (30 pages) (Cordy,J.) (SJC) Cases
tried before Chin, J., in Superior Court. Ruth
Greenberg on appeal for the defendant; Robert
C. Thompson for the commonwealth (Docket
No. SJC-09380) (Dec. 9, 2005).
Murder - First degree
Where a defendant has been convicted of
first-degree murder,the conviction must be affirmed
because the defendant’s trial counsel
was not ineffective in failing to pursue the defenses
of mental impairment and lack of criminal
responsibility.
Commonwealth v.Candelario (Lawyers Weekly
No. 10-096-06) (20 pages) (Cowin, J.) (SJC)
Case tried before Richard E.Welch III, J.; motion
for a new trial considered by him. Joseph A.
Hanofee for the defendant; Catherine Langevin
Semel for the commonwealth (Docket No. SJC-
09495) (June 5, 2006).
Murder - Joint venture
theory - Retrial
Where (1) an indictment alleged murder as
both a principal and a joint venturer, (2) a mis-
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Continued from page B8
trial was declared when the jury could not reach
a unanimous verdict and (3) the defendant now
claims that the commonwealth should be barred
from advancing a joint venture theory at a retrial,the
defendant’s argument must be rejected,as
the commonwealth’s evidence was sufficient to
submit the case the jury on principal and joint
venture liability on both charges.
Taylor v. Commonwealth (Lawyers Weekly
No.10-102-06) (9 pages) (Greaney,J.) (SJC) Petition
heard by Sosman, J., sitting as single justice.
John D. Fitzpatrick for the defendant; John
E. Bradley for the commonwealth (Docket No.
SJC-09443) (June 16, 2006).
Murder - Manslaughter -
Reduced verdict
Where a judge reduced a first-degree murder
verdict to involuntary manslaughter, the judge
acted properly considering the defendant’s role
in a multi-party fatal attack on the victim.
Commonwealth v. Chhim (Lawyers Weekly
No.10-129-06) (27 pages) (Cowin,J.) (Spina,J.,
with whom Greaney and Ireland, JJ., join, dissenting)
(SJC) Motion to suppress evidence
heard by Chernoff, J.; case tried before Gants, J.,
and motions for postconviction relief and for a
new trial heard by him. Stewart T. Graham Jr.
for the defendant’ Peter A. D’Angelo and Kevin
L. Ryle for the commonwealth (Docket No. SJC-
09592) (Aug. 2, 2006).
Murder - Motion for
new trial - Reduced verdict
Where (1) a jury convicted the defendant of
first-degree murder, (2) the defendant then
filed a motion for a new trial pursuant to Rule
30(b) of the Massachusetts Rules of Criminal
Procedure and (3) the judge who heard the
motion ordered the entry of a finding of guilty
of a lesser offense (second-degree murder),the
judge did not abuse his authority.
Commonwealth v. Gilbert (Lawyers Weekly
No.10-116-06) (23 pages) (Marshall,C.J.) (SJC)
Motion for a new trial heard by Gants, J.; motion
for reconsideration of the reduction of the
verdict also heard by him. Richard J. Fallon for
the defendant; Peter D’Angelo for the commonwealth
(Docket No. SJC-09512) (July 5, 2006).
Murder - Newly-discovered
evidence - Ineffective assistance
Where a defendant,who was found guilty of
the premeditated murder of two of his business
associates, appealed and filed a new trial
motion, both the appeal and new trial motion
were rightly rejected,as no merit existed to the
defendant’s claims (1) that newly-discovered
evidence cast substantial doubt on the justice
of his convictions and (2) that he was denied
the effective assistance of counsel.
Commonwealth v. Shuman (Lawyers Weekly
No. 10-164-05) (17 pages) (Cordy, J.) (SJC)
Case heard by Botsford,J.,and new trial motion
considered by her. Donald A. Harwood for the
defendant; Varsha Kukafka and Susan Corcoran
for the commonwealth (Docket No. SJC-
08364) (Nov. 8, 2005).
Murder - Post-trial discovery
Where a judge denied the post-trial discovery
motion of a defendant convicted of firstdegree
murder, we hold that this constituted
error under the circumstances presented by
the case and that a remand must be ordered.
Commonwealth v. Daniels (Lawyers Weekly
No.10-178-05) (28 pages) (Marshall,C.J.) (SJC)
Cases tried before Rup, J., and motions for posttrial
discovery and for a new trial were heard by
her. Dana Alan Curhan and Brad P. Bennion
for the defendant; Jane Davidson Montori for
the commonwealth (Docket No. SJC-08805)
(Nov. 23, 2005).
Murder -
Reasonable provocation
Where a defendant was convicted of seconddegree
murder, the conviction must be vacated
and a new trial ordered, as the defendant’s
trial counsel was ineffective in failing to request
a jury instruction on voluntary manslaughter
based on reasonable provocation.
Commonwealth v. Acevedo (Lawyers Weekly
No. 10-059-06) (24 pages) (Spina, J.) (SJC) Case
tried before Grabau, J.; motion for a new trial
heard by him. Leslie W. O’Brien on appeal for the
defendant;Kevin J.Curtin for the commonwealth
(Docket No. SJC-09577) (April 4, 2006).
Murder in first degree -
Armed robbery
Where a defendant has appealed his convictions
for first-degree murder and armed
robbery, we hold that the convictions should
stand, as (1) the trial judge acted permissibly
in submitting the case to the jury on a theory
of extreme atrocity or cruelty, (2) the defendant’s
motion to suppress statements he made
to the police was rightfully denied,(3) the jury
instructions framed contained no reversible
error, (4) no abuse of discretion occurred in
the admission of certain autopsy and crime
scene photographs, (5) the court acted permissibly
in refusing the sever the defendant’s
trial from that of a coventurer and (6) no merit
exists to the defendant’s claims of ineffective
assistance of counsel and serious error in the
prosecutor’s opening and closing statements.
We also find no reason today to act pursuant
to G.L.c. 278, §33E, to reduce the murder verdict
or order a new trial.Affirmed.
Commonwealth v.Anderson (Lawyers Weekly
No. 10-157-05) (31 pages) (Ireland, J.) (SJC)
Cases tried before Rouse, J., in the Superior
Court. Robert S. Sinsheimer for the defendant;
Amanda Lovell for the commonwealth (Docket
No. SJC-09266) (Sept. 22, 2005).
Murder in first degree - Infant
victim - Cross-examination
Where a defendant has been convicted of
first-degree murder, the conviction should be
affirmed based on this court’s rejection of the
defendant’s argument that his right to crossexamination
was improperly restricted.
Commonwealth v.Podkowka (Lawyers Weekly
No.10-003-06) (15 pages) (Spina,J.) (SJC) Cases
tried before Carhart,J.,in Superior Court.Myles
D. Jacobson on appeal for the defendant; Elizabeth
Dunphy Farris for the commonwealth (Docket
No. SJC-08788) (Jan. 6, 2006).
Murder in second
degree - Likelihood of
death - Jury instruction
Where (1) a defendant,convicted of seconddegree
murder, moved for a new trial and (2)
an order denying that motion was reversed by
the Appeals Court on the ground that a jury
instruction on “third prong malice” was erroneous,
the conviction should be reinstated, as
the error did not result in a substantial risk of
a miscarriage of justice.
Commonwealth v. Childs (Lawyers Weekly
No.10-191-05) (10 pages) (Ireland,J.) (SJC) Motion
for a new trial considered by McEvoy, J., in
Superior Court. Anne M. Thomas for the commonwealth;
Arnold R. Rosenfeld and Ashley
Handwork for the defendant (Docket No. SJC-
09441) (Dec. 15, 2005).
New trial -
Ineffective assistance
Where a Superior Court judge granted a criminal
defendant a new trial,we hold that the judge
acted permissibly,as the defendant demonstrated
that his trial counsel had provided ineffective
assistance in depriving the defendant, through
inattention, of two grounds of defense: thirdparty
culprit and failure of the police to conduct
an adequate investigation.
Commonwealth v. Phinney (Lawyers Weekly
No. 10-038-06) (19 pages) (Ireland, J.) (SJC)
Case heard by Sosman, J., sitting as single justice.
David W. Cunis for the commonwealth;
David R. Yannetti for the defendant on appeal
only (Docket No. SJC-09435) (March 6, 2006).
New trial - Newly
discovered evidence
Where a defendant convicted of murder was
granted a new trial, this was error, as the defendant
did not present any newly discovered,
admissible evidence.
Commonwealth v. Weichell (Lawyers Weekly
No. 10-092-06) (32 pages) (Greaney, J.) (SJC)
Motion for a new trial heard by Borenstein, J.,
in Superior Court. Robert C. Cosgrove for the
commonwealth; Carol A. Fitzsimmons for the
defendant (Docket No.SJC-09556) (Docket No.
SJC-09556) (May 22, 2006).
New trial motion -
Effectiveness of counsel -
Recantation
Where a Superior Court judge denied a
murder defendant’s motion for a new trial,the
judge committed no abuse of discretion,as defense
counsel was not ineffective.
Commonwealth v. Hudson (Lawyers Weekly
No.10-087-06) (27 pages) (Cowin,J.) (SJC) Motion
for new trial heard by Lauriat, J., in Superior
Court. Attorneys on appeal were Paul B.
Linn for the commonwealth and Greg T. Schubert
for the defendant (Docket No. SJC-09593)
(May 16, 2006).
Probation - Revocation -
Termination date
Where a defendant’s probation was revoked,
a remand must be ordered because the revocation
decision was improperly based in part
on behavior that occurred following the end
of the probationary period.
Commonwealth v. Aquino (Lawyers Weekly
No. 10-181-05) (8 pages) (Cowin, J.) (SJC) probation
revocation hearing was held by Tina S.
Page, J., and motions for reconsideration were
heard by her. Douglas J. Beaton for the defendant;
Dianne M. Dillon for the commonwealth;
David J. Nathanson, for Committee for Public
Counsel Services, amicus curiae, submitted a
brief (Docket No. SJC-09485) (Dec. 2, 2005).
Probation revocation -
‘No contact’condition
Where a probation condition stated that the
defendant was to have “no contact” with minors
under 16 years of age, we hold that the
condition gave him sufficient notice that he
was prohibited from displaying his antique automobile
at a car show attended by minors.
Commonwealth v.Kendrick (Lawyers Weekly
No. 10-025-06) (11 pages) (Cowin, J.) (SJC)
Probation revocation proceeding heard by
Martha A. Scannell Brennan, J., in the District
Court. James B. Krasnoo for the defendant;
Christopher P. Hodgens for the commonwealth
(Docket No. SJC-09514) (Feb. 9, 2006).
Prostitution -
Motion to suppress
Where a defendant has appealed his convictions
for owning, or assisting in the management
or control of,a place for unlawful sexual
intercourse and for keeping a house of ill
fame, we conclude that the appeal must be rejected
because (1) the relevant search warrant
was issued on sufficient probable cause and
properly executed,(2) the judge committed no
palpable error in admitting certain “prior bad
act” evidence and certain extrajudicial statements,(3)
the judge acted permissibly in denying
the defendant’s motion for a mistrial, (4)
the defendant has not proved his “ineffective
assistance of counsel” claim, (5) sufficient evidence
was introduced against the defendant
at trial to justify denials of his motions for required
findings of not guilty and (6) the defendant
was not prejudiced by a certain erroneous
jury instruction.
Commonwealth v. Mullane (Lawyers Weekly
No. 10-004-06) (25 pages) (Ireland, J.) (SJC)
Pretrial suppression motion heard by Hamlin,
J.,and cases tried before her.David W.Cunis for
the commonwealth; George Hassett for the defendant
(Docket No. SJC-09527) (Jan. 9, 2006).
Questioning by DSS
investigator - Right of counsel
Where a defendant filed a motion to suppress
an incriminating statement he made to an investigator
with the Department of Social Services
who interviewed the defendant at jail without
defense counsel present, the motion should
have been allowed but the error was harmless.
Commonwealth v. Howard (Lawyers Weekly
No. 10-067-06) (13 pages) (Greaney, J.) (SJC)
Motion to suppress evidence heard by Rup, J.;
cases tried before Agostini,J.,in Superior Court.
Aziz Safar for the defendant; Steven Greenbaum
for the commonwealth (Docket No. SJC-09605)
(April 18, 2006).
Rape - Mental impairment
Where (1) a jury convicted the defendant of
raping a 19-year-old woman suffering from a
brain disorder and resulting mental disability,
(2) the Appeals Court set aside the verdict,
holding that the trial judge had improperly admitted,
through the testimony of the victim’s
mother,character evidence of the victim’s trusting
nature and propensity to be victimized,and
(3) the commonwealth applied for further appellate
review, we decide that the defendant’s
conviction should be affirmed.
Commonwealth v. Bonds (Lawyers Weekly
No.10-016-06) (23 pages) (Cordy,J.) (SJC) Case
tried before Sikora, J., in the Superior Court.
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Continued from page B10
Therese M.Wright for the commonwealth; Eric
S. Brandt for the defendant (Docket No. SJC-
09507) (Jan. 19, 2006).
Reciprocal discovery -
Witness statements
Where a judge in a criminal case ordered the
defendant to furnish the commonwealth with
witness statements in the possession of the defendant
or his attorney, including statements
of the commonwealth’s intended witnesses,this
order was valid under Massachusetts law and
accordingly should be affirmed.
Commonwealth v. Durham (Lawyers Weekly
No.10-043-06) (47 pages) (Greaney,J.) (Marshall,
C.J., joined by Ireland, J., dissenting) (Cordy, J.,
joined by Marshall, C.J., and Ireland, J., dissenting)
(SJC) Case reported by Cordy,J.,sitting as single
justice. James L. Sultan and Jonathan P. Harwell
with him) for the defendant;Paul B.Linn and
David E. Meier for the commonwealth; the following
submitted briefs for amici curiae:Matthew
Feinberg and Peter B. Krupp for the National Association
of Criminal Defense Lawyers and another;Stephanie
Page and Brownlow M.Speer for
Committee for Public Counsel Services (Docket
No. SJC-09576) (March 14, 2006).
Right to jury trial - Waiver
Where a defendant did not sign a written
waiver of his right to trial by jury (as required
by G.L.c. 263, §6 and Mass. R. Crim. P. 19 (a)),
his subsequent conviction by a judge of possession
of a class B substance was invalid and
must be reversed.
Commonwealth v. Osborne (Lawyers Weekly
No. 10-012-06) (9 pages) (Cordy, J.) (SJC) Case
heard by May, J., in the District Court. Amanda
Lovell for the commonwealth; Deborah Bates Riordan
and Theodore Riordan for the defendant
(Docket No. SJC-09448) (Jan. 17, 2006).
Sentencing - Credit -
Home confinement
Where a defendant,having pled guilty,sought
to have his sentence offset by time he spent in
home confinement prior to trial,that request was
correctly denied under G.L.c. 279, §33A.
Commonwealth v.Morasse (Lawyers Weekly No.
10-034-06) (14 pages) (Sosman,J.) (SJC) motion to
correct the mittimus heard by Kottmyer, J., in Superior
Court. Paula Finley Mangum for the defendant;Marcia
H.Slingerland for the commonwealth
(Docket No. SJC-09500) (Feb. 21, 2006).
Sexually dangerous person
Where an individual has appealed a denial of
his petition for discharge from his continued commitment
as a“sexually dangerous person,”we hold
that his challenge must fail because (1) a judge acted
permissibly in admitting into evidence,under
G.L.c. 123A, §9, certain treatment center reports
containing “totem pole” hearsay, (2) the jury instructions
framed contained no reversible error,
(3) sufficient evidence was introduced at trial to
demonstrate the need for the petitioner’s continued
commitment and (4) a discharge petition filed
under G.L.c. 123A, §9, was not an appropriate
means for the petitioner to challenge the validity
of his original commitment.
Affirmed.
McHoul, petitioner (Lawyers Weekly No. 10-
150-05) (27 pages) (Sosman,J.) (Spina,J.,joined
by Cowin, J., concurring in part and dissenting
in part) (SJC) Case tried before Hamlin, J., in
the Superior Court. David Hirsch for the petitioner;
Mary P. Murray for the commonwealth;
William R. Keating, Tracey A. Cusick and Varsha
Kukafka submitted a brief for the District
Attorney for the Norfolk District, amicus curiae
(Docket No. SJC-09392) (Sept. 8, 2005).
Wetlands Protection
Act - Indictment
Where a judge dismissed without prejudice
an indictment charging the defendants with
violating the Wetlands Protection Act in connection
with tree clearing and landfilling activities,
the dismissal order must be reversed
because the grand jury proceedings were not
impaired.
Commonwealth v. Clemmey (and a companion
case) (Lawyers Weekly No. 10-114-06) (29
pages) (Cordy, J.) (SJC) Motion to dismiss heard
by Connon, J., in Superior Court. Daniel I. Smulow
and Paul Molloy for the commonwealth;
Howard M.Cooper for Karl D.Clemmey and another
(Docket No. SJC-09463) (June 30, 2006).
Written statement to police -
Manslaughter instruction -
Provocation by third party
Where the Appeals Court vacated a Superior
Court judge’s order suppressing a murder
defendant’s written statement to state police
investigators,we affirm the Appeals Court’s decision,
as we conclude that the statement was
admissible.
Commonwealth v. LeClair (Lawyers Weekly
No. 10-006-06) (16 pages) (Greaney, J.) (SJC)
Motion to suppress heard by Patrick F. Brady, J.;
case tried before Francis F. Fecteau, J., in Superior
Court.Chauncey B.Wood on appeal for the
defendant; David Waterfall for the commonwealth;
Debra S. Krupp submitted a brief for
amicus curiae Committee for Public Counsel
Services (Docket No.SJC-09487) (Jan.11,2006).
Damages
Liquidated damages -
Burden of proof
Where a judge refused to enforce the liquidated
damages provision in a commercial
lease, this was proper, as defendant lessee satisfied
its burden of proving that “the liquidated
damages were,from the outset,intended by
[the plaintiff lessor] to serve as a penalty, and
not as a reasonable assessment of damages that
actually might occur.”
We go on to vacate as unwarranted an award
of counsel fees for the plaintiff.
TAL Financial Corp. v. CSC Consulting, Inc.
(Lawyers Weekly No. 10-057-06) (19 pages)
(Greaney, J.) (SJC) Case heard by Hinkle, J., in
Superior Court.Leonard M.Singer for the plaintiff;
Andrew C. Griesinger for the defendant
(Docket No. SJC-09518) (March 31, 2006).
Domestic relations
Divorce - Jurisdiction
Where (1) a plaintiff wife and defendant husband
were divorced in Massachusetts in 1990,
(2) the defendant moved to Tennessee and then
to Utah where he presently resides,(3) the plaintiff
moved to New York but then returned to
Massachusetts to live in 2003, (4) the plaintiff
subsequently went to court in Massachusetts arguing
that the defendant had failed to make child
support and medical payments for two years and
(5) a Probate & Family Court judge found the
defendant in contempt, we hold that the contempt
finding should stand as the Probate &
Family Court had proper jurisdiction to consider
the plaintiff’s complaint.
Klingel v. Reill (Lawyers Weekly No. 10-029-
06) (11 pages) (Sosman,J.) (SJC) Complaint for
contempt heard by Kopelman, J., in the Probate
& Family Court. Frank J. Baldassini for the
plaintiff; Richard E. Manelis for the defendant
(Docket No. SJC-09536) (Feb. 14, 2006).
Prenuptial agreement - Alimony
Where a judge struck down as invalid an antenuptial
agreement’s provision precluding the
wife from receiving alimony,that decision must
be reversed on the ground that “the agreement
was valid at the time it was executed and reasonable
at the time of divorce.”
Austin v.Austin (Lawyers Weekly No.10-195-
05) (15 pages) (Ireland,J.) (Greaney,J.,joined by
Spina, J., dissenting) (SJC) Case heard by Terry,
J., in the Probate & Family Court. Jacob M. Atwood,
Mark T. Smith and Erin Moran Shapiro
for Craig B.Austin; Dana Alan Curhan and Brad
P. Bennion for Donna M. Austin (Docket No.
SJC-09492) (Dec. 21, 2005).
Same-sex marriage -
Out-of-state residents
Where non-resident same-sex couples
sought a preliminary injunction barring the
enforcement of a state statute under which they
are prohibited from marrying in Massachusetts,an
order denying that request must be affirmed
as to the plaintiffs who reside in Connecticut,Maine,New
Hampshire and Vermont
because same-sex marriage is prohibited in
those states.
Cote-Whitacre, et al. v. Department of Public
Health, et al. (and a companion case) (Lawyers
Weekly No.10-055-06) (91 pages) (Spina,J.,with
whom Cowin and Sosman, JJ., join, concurring)
(Marshall, C.J., with whom Cordy, J., joins and
Greaney, J., joins in part, concurring) (Greaney,
J., concurring) (Ireland, J., dissenting) (SJC) Motions
for injunctive relief and for reconsideration
heard by Ball, J., in Superior Court. Michele E.
Granda and Gary D. Buseck for the plaintiffs;
Kevin D.Batt,Anne Robbins and Sarah R.Wunsch
for town clerk of Provincetown and others;
Peter Sacks for Department of Public Health and
others; the following submitted briefs for amici
curiae: Kenneth J.Parsigian and Shirley Sperling
Paley for Erwin Chemerinsky and others; Kathleen
M. O’Donnell, Mark D. Mason, Martin W.
Healy, Peter F. Zupcofska, Elizabeth M. Duffy,
Darien K.S.Fleming,Eleanor H.Gilbane,Shu-Yi
Oei, Matthew D. Schnall and Corin R. Swift for
Massachusetts Bar Association and another;Anthony
Mirenda, Vickie L. Henry, Sara K. Pildis
and Bradley E. Abruzzi for Asian American Legal
Defense and Education Fund and others;Barbara
J. Cox, Jonathan A. Shapiro, Maura T.
Healey, Joseph J. Mueller, Steven P. Lehotsky and
Miranda Hooker for Barbara J. Cox and others;
George I. Goverman, pro se; Benjamin W. Bull,
Glen Lavy, Randall Wenger, Dale Schowengerdt
and Philip D.Moran for Raymond Flynn and another
(Docket No.SJC-09436) (March 30,2006).
Education
Regional school district -
Amendment
Where the Commissioner of the Department
of Education denied approval of a proposed
amendment to a regional school district
agreement, a judgment upholding the Commissioner’s
decision should be affirmed on the
ground that the Commissioner did not exceed
his authority.
Town of Holden v.Wachusett Regional School
District Committee, et al. (Lawyers Weekly No.
10-199-05) (20 pages) (Marshall,C.J.) (SJC) case
was heard by Fishman, J., on motions for summary
judgment; entry of judgment ordered by
McCann, J., in Superior Court. John O. Mirick
for the plaintiff; Jane L. Willoughby for Department
of Education; Brian W. Riley for town of
Rutland (Docket No.SJC-09438) (Dec.29,2005).
University police
department - Public records
Where a plaintiff has requested,pursuant to
G.L.c. 66, §10, production of certain documents
in the possession of a defendant university’s
police department, the request was
properly denied on the ground that the documents
do not constitute public records.
The Harvard Crimson, Inc. v. President and
Fellows of Harvard College, et al. (Lawyers
Weekly No. 10-007-06) (16 pages) (Spina, J.)
(SJC) Case heard by Staffier, J., on a motion to
dismiss. Frances S. Cohen, Amber R. Anderson

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and Sarah R. Wunsch for the plaintiff; Jeffrey
Swope and Kara A. Krolikowski for the defendants;
the following submitted briefs for amici
curiae: Adam A. Rowe for James K. Herms and
another; Leonard M. Singer for The Student
Press Law Center and others (Docket No. SJC-
09434) (Jan. 13, 2006).
Elections
Dog racing - Initiative petition
Where plaintiffs have challenged the Attorney
General’s certification of an initiative petition
which would amend existing laws regarding
animal cruelty and also would outlaw
parimutuel dog racing,the certification must be
quashed on the ground that petition violates the
state constitution’s relatedness requirement.
Carney, et al. v. Attorney General, et al.
(Lawyers Weekly No.10-120-06) (23 pages) (Marshall,C.J.)
(SJC) Case reported by Spina,J.,sitting
as single justice. Joel A. Kozol, Lee H. Kozol and
Marc D.Rie for the plaintiffs;Peter Sacks and Lorraine
A. Goldenberg-Tarrow for the defendants;
the following submitted briefs for amici curiae:
Thomas R. Kiley for Wonderland Greyhound
Owners Association, Inc., and others; Bradley J.
Butwin, Abby F. Rudzin, Samantha L. Hetherington,&
Joseph D.Keller and Jeffrey D.Hutchins
for Committee to Protect Dogs and another
(Docket No. SJC-09706) (July 13, 2006).
PROFILES OF THE JUSTICES
Employment
Civil service - Layoff -
Disabled veteran
Where a state agency laid a disabled veteran
off following severe budgetary cuts,we hold
that the agency did not contravene the statutory
preference accorded disabled veterans.
Having reached this conclusion, we let stand
decisions entered for the agency by the Civil Service
Commission and a Superior Court judge.
Andrews v. Civil Service Commission, et al.
(Lawyers Weekly No. 10-075-06) (13 pages)
(Cowin, J.) (SJC) Case heard by Murtagh, J., on a
motion for judgment on the pleadings. Jonathan
M. Feigenbaum and Stephanie M. Swinford for
the plaintiff; Juliana deHaan Rice for the defendants
(Docket No. SJC-09620) (April 28, 2006).
JUSTICE FRANCIS
X. SPINA
Appointed to SJC: 1999
Will reach retirement age: 2016
Majority opinions written this year: 25
Dissenting opinions written this year: 2
Total dissenting votes cast: 6
Notable decision: Lowery v. Klemm
(Lawyers Weekly No. 10-068-06), which
found that a volunteer "swap shop" worker
could not sue her supervisor for sexual
harassment since G.L.c. 214, §1C does
not apply to volunteers.
Civil service - MBTA promotions
Where the plaintiffs, seven white male police
officers employed by the Massachusetts Bay
Transportation Authority,claim that they were
unlawfully bypassed for promotions to the
ranks of sergeant and lieutenant and that minority
or female candidates were unlawfully
promoted to those positions instead, we conclude
that the plaintiffs’claim must be rejected.
Brackett, et al. v. Civil Service Commission, et
al.(and a companion case) (Lawyers Weekly No.
10-121-06) (37 pages) (SJC) Motions for judgment
on the pleadings heard by Kottmyer,J.,and
Botsford,J.,in the Superior Court.Frank J.McGee
for the plaintiffs; Robert L.Quinan Jr.for the Human
Resources Division of the Commonwealth;
Robert P. Morris for the Massachussetts Bay
Transportation Authority; Daniel J. Gleason,
Yolanda T.Howze and Nadine Cohen submitted
a brief for Massachusetts Association of Minority
Law Enforcement Officers, amicus curiae
(Docket No. SJC-09521) (July 14, 2006).
Discrimination claim -
Sexual orientation -
Medical peer review privilege
Where (1) a plaintiff sued his former employer,a
defendant hospital,charging that it discriminated
against him on the basis of his sexual
orientation and retaliated against him when
he complained about the discrimination, (2) a
jury returned a verdict in the defendant’s favor
and (3) the plaintiff subsequently appealed, we
hold that the appeal must be rejected.
Pardo v. The General Hospital Corporation,
et al.(Lawyers Weekly No.10-021-06) (32 pages)
(Marshall, C.J.) (SJC) Motion to compel discovery
heard by Gershengorn, J., and the case was
tried before her.Ellen J.Zucker and Paul R.Cirel
for the plaintiff; Frank E. Reardon and James J.
Horgan for the defendants (Docket No. SJC-
09433) (Jan. 26, 2006).
G.L.c. 151B - Employee’s death
Where (1) a plaintiff died after filing a G.L.c.
151B complaint and (2) the defendant’s subsequent
motion to dismiss was denied as to the
claim for compensatory damages and allowed
to the extent the complaint sought punitive
damages,the motion should have been denied
in its entirety.
Gasior v. Massachusetts General Hospital
(Lawyers Weekly No.10-080-06) (16 pages) (Marshall,
C.J.) (SJC) Motion to dismiss heard by
MacLeod, J.; question of law was reported by her.
Shannon Liss-Riordan for the plaintiff; Frank E.
Reardon and John P. Puleo for the defendant; the
following submitted briefs for amici curiae:Jonathan
J.Margolis and Robert S.Mantell for Massachusetts
Employment Lawyers Association;Beverly I.Ward
for Massachusetts Commission Against Discrimination
(Docket No. SJC-09517) (May 11, 2006).
Continued on page B14

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Continued from page B13
Handicap discrimination -
Misconduct
Where a plaintiff filed suit alleging discrimination
on the basis of disability (bipolar disorder),judgment
was properly entered for the
defendant employer on the ground that the
plaintiff’s egregious misconduct in the workplace
rendered him an unqualified handicapped
person.
Mammone v. President and Fellows of Harvard
College (Lawyers Weekly No. 10-081-06)
(47 pages) (Cordy, J.) (Greaney, J., dissenting)
(SJC) Case heard by Gants, J., on a motion for
summary judgment; entry of judgment dismissing
the plaintiff’s complaint ordered by Brassard,
J., in Superior Court. Betsy L. Ehrenberg
and Rebecca G. Pontikes for the plaintiff; John
P. Coakley and Richard J. Riley for the defendant;
the following submitted briefs for amici
curiae: Beverly I. Ward and John Lozada for
Massachusetts Commission Against Discrimination;
Susan Stefan for Center for Public Representation
and others (Docket No. SJC-09609)
(May 12, 2006).
Harassment - Third party
Where an employer was held liable for failing
to protect an employee from harassment
by one of the employer’s subcontractors, the
finding of liability must be reversed on the
ground that the employer took reasonable remedial
steps.
Modern Continental/Obayashi v.Massachusetts
Commission Against Discrimination,et al.
(Lawyers Weekly No. 10-149-05) (33 pages)
(Sosman, J.) (SJC) Case heard by Ball, J., on a
motion for judgment on the pleadings. Richard
D. Wayne for the plaintiff; Beverly I. Ward for
Massachusetts Commission Against Discrimination;
James B. Cox for Whatleigh Edmands;
John D. O’Reilly III, Karl J. Gross and James F.
Grosso, for Associated General Contractors of
Massachusetts, Inc., and others, amici curiae,
submitted a brief (Docket No.SJC-09356) (Sept.
7, 2005).
MCAD - Emotional
distress - Counsel fees -
Prejudgment interest
Where a Superior Court judge upheld a finding
by the Massachusetts Commission Against
Discrimination that the defendant Wakefield
Municipal Gas & Light Department had discriminated
against the plaintiff employee on
the basis of age, the judgment must be vacated
to the extent that it includes emotional distress
damages, as there was insufficient evidence to
support an award of such damages.
DeRoche v.Massachusetts Commission Against
Discrimination, et al. (Lawyers Weekly No. 10-
097-06) (27 pages) (Greaney,J.) (SJC) Cases heard
by Hines,J.,on motions for judgment on the pleadings;
motion for attorney’s fees and costs heard by
Neel,J.,J.,in Superior Court.Nicholas J.Scobbo Jr.
and Ann Ryan-Small for Wakefield Municipal
Gas & Light Department; Seth H.Hochbaum for
the plaintiff; Beverly I. Ward for Massachusetts
Commission Against Discrimination; the following
submitted briefs for amici curiae: Thomas F.
Reilly and Peter Sacks for the commonwealth;
James S. Weliky for National Employment
Lawyers’ Association, Massachusetts Chapter
(Docket No. SJC-09619) (June 12, 2006).
PROFILES OF THE JUSTICES
MEPA - Teachers
Where two plaintiff women teachers filed
suit,claiming that the defendant school district
discriminated against them with regard to
salary because of their gender and thus violated
the Massachusetts Equal Pay Act, we hold
that a judge erred in granting the plaintiffs relief,
as the evidence introduced at trial did not
support their claim.
Silvestris v.Tantasqua Regional School District
(and a companion case) (Lawyers Weekly No.10-
089-06) (32 pages) (Spina, J.) (SJC) Cases heard
by Carhart, J., in the Superior Court. Marie E.
DeLuzio and Karen W.Peters for defendant Tantasqua
Regional School District; Cornelius J.Moriarty
II for plaintiffs Joanne Silvestris and Valerie
A.Goncalves;Danielle Y.Vanderzanden and
Douglass C. Lawrence, on brief, for amicus curiae
Associated Industries of Massachusetts;
Thomas F.Reilly,Catherine C.Ziehl and Zoe Butler-Stark,on
brief,for the amicus curiae Attorney
General; Sara Smolik, Robert Mantell and Elizabeth
A. Rodgers, on brief, for the amicus curiae
National Employment Lawyers Association,
Massachusetts Chapter (Docket No. SJC-09540)
(May 18, 2006).
Retaliation - Hostile work
environment - Continuing
violation - ‘Cuddyer’
Where a jury found in favor of a plaintiff
MBTA employee on claims of hostile work environment
and unlawful retaliation, a new trial
with respect to damages must be ordered,as the
defendant is entitled to a jury instruction regarding
the standard set forth in Cuddyer v.Stop
& Shop Supermarket Co., 434 Mass.521 (2001).
In upholding the jury’s liability determination,
we conclude that retaliation claims are
subject to the continuing violation doctrine.
Clifton v. Massachusetts Bay Transportation
Authority (Lawyers Weekly No. 10-197-05) (21
pages) (Greaney, J.) (SJC) Case tried before
Gants, J., in Superior Court. Kevin G. Powers
and Robert S. Mantell for the plaintiff; Walter
M. Foster and Matthew J. Walko for the defendant;
the following submitted briefs for amici
curiae: Marisa Campagna, Theresa Finn-Dever
and James S. Weliky for National Employment
Lawyers Association; Paul H. Merry and
Angela Ciccolo for Massachusetts Employment
Lawyers Association & another (Docket No.
SJC-09462) (Dec. 21, 2005).
Retaliation - Internal complaints
Where plaintiff employees of a defendant
restaurant claim that they were retaliated against
after complaining that the defendant was violating
a tip-pooling statute,the defendant should
not have been awarded summary judgment,as
G.L.c.149,§148A prohibits employers from retaliating
against employees for making internal
allegations of wage violations,even if those employees
never brought their allegations to the
attention of the Attorney General.
Smith,et al.v.Winter Place LLC,et al.(Lawyers
Weekly No.10-128-06) (10 pages) (Cordy,J.) (SJC)
Motion for summary judgment was heard by
Holtz, J.; question of law reported by Gants, J., in
Superior Court. Shannon Liss-Riordan for the
plaintiffs; Gordon P. Katz for the defendants; the
following submitted briefs for amici curiae: John
E.Coyne and Kevin P.Sweeney for Massachusetts
Restaurant Association; Ingrid Nava, Audrey R.
Richardson, Patti A. Prunhuber and Donald J.
Siegel for Greater Boston Legal Services & others;
Julia J. Carabilo and Andrea C. Kramer for The
Women’s Bar Association of Massachusetts (Docket
No. SJC-09544) (Aug. 1, 2006).
JUSTICE MARTHA
B. SOSMAN
Appointed to SJC: 2000
Will reach retirement age: 2020
Majority opinions written this year: 7
Dissenting opinions written this year: 0
Total dissenting votes cast: 0
Notable decision: In the Matter of a
Grand Jury Subpoena (Lawyers Weekly
No. 10-106-06), which determined that
the spousal privilege statute only applied
to trial testimony, not to a murder suspect's
wife who was seeking to avoid testifying
in a grand jury proceeding against
her husband.
Volunteers - Harassment
Where a plaintiff volunteer employee brought
suit under G.L.c. 214, §1C alleging sexual harassment
by a defendant co-worker, the defendant
was properly awarded summary judgment,
as volunteers are not covered by the statute.
Lowery v. Klemm (Lawyers Weekly No. 10-
068-06) (15 pages) (Spina, J.) (SJC) Case heard
by McLaughlin, J., on a motion for summary
judgment. Lee M. Berger for the defendant;
Kevin M.Orme for the plaintiff (Docket No.SJC-
09580) (April 21, 2006).
Environmental
Groundwater
discharge permit - Pond
Where plaintiffs challenged a decision by the
defendant Department of Environmental Protection
upholding the codefendant Edgartown
Wastewater Commission’s issuance of a groundwater
discharge permit for the operation of a
municipal wastewater treatment plant,we conclude
that the DEP’s decision was properly affirmed
in Superior Court, as (1) the DEP did
not erroneously interpret the applicable regulations
and (2) there was no error in the exclusion
of certain cross-examination testimony.
Friends and Fishers of the Edgartown Great
Pond, Inc., et al. v. Department of Environmental
Protection, et al. (Lawyers Weekly No. 10-
095-06) (24 pages) (Ireland,J.) (SJC) Case heard
by Walker, J., on a motion for judgment on the
pleadings. Douglas H. Wilkins for Friends &
Fishers of the Edgartown Great Pond, Inc.;
Michael S.Nuesse for Group of Ten Citizens; Siu
Tip Lam for Department of Environmental Protection;
Lisa C. Goodheart and Ronald H. Rappaport
for Edgartown Wastewater Commission
(Docket No. SJC-09570) (June 1, 2006).
Evidence
Expert - New trial
Where (1) a jury returned a verdict in favor
of the defendant in a medical malpractice case
and (2) the plaintiff later moved for a new trial
on the theory that a defense expert had provided
false and misleading testimony,an order
allowing this motion (and imposing sanctions
on the defendant and the expert witness) must
be reversed.
Wojcicki v.Caragher (Lawyers Weekly No.10-
119-06) (25 pages) (Spina, J.) (SJC) Case tried
before Kottmyer,J.; motion for a new trial heard
by her. William J. Dailey Jr. and John M. Dellea
for Frederick Hochberg; David M. Gould and
Sean E. Capplis for Joan E. Caragher; David W.
White-Lief and Marc L.Breakstone for the plaintiff
(Docket No. SJC-09565) (July 11, 2006).
Expert - Standard of care -
Medical malpractice
Where a judge awarded a defendant physician
summary judgment in a medical malpractice
case,this judgment should be affirmed
in light of the plaintiffs’ failure to submit expert
evidence on the issue of standard of care.
Palandjian, et al. v. Foster (Lawyers Weekly
No.10-033-06) (19 pages) (Spina,J.) (SJC) Case
tried before Zobel,J.,in Superior Court.Kenneth
W. Salinger and Raymond J. Kenney Jr. for the
defendant; John B. Flemming, Joseph P. Musacchio
and Camille F. Sarrouf for the plaintiffs
(Docket No. SJC-09562) (Feb. 21, 2006).
Hearsay - Confrontation -
Probation revocation - ‘Crawford’
Where a judge, relying in part on hearsay
statements contained in a police report, ordered
a defendant’s probation revoked,this order
should be affirmed because the right of
confrontation set out in Crawford v. Washington,
541 U.S. 36 (2004) does not apply to probation
revocation proceedings.
Commonwealth v. Wilcox (Lawyers Weekly
No. 10-026-06) (15 pages) (Cowin, J.) (SJC) Proceeding
for revocation of probation heard by Baylor,J.,in
District Court.Thomas J.Iovieno for the
defendant; Michael J. Markoff for the commonwealth
(Docket No. SJC-09513) (Feb. 9, 2006).
Hearsay - Probation revocation
Where a judge relied on hearsay statements
in revoking a defendant’s probation,there was
no error, as the evidence was reliable.
Affirmed.
Commonwealth v. Nunez (Lawyers Weekly
No.10-027-06) (10 pages) (Cowin,J.) (SJC) Proceeding
for revocation of probation heard by
Gailey,J., in District Court.Lisa M.Sheehan for
the defendant on appeal; Seema Malik Brodie
for the commonwealth (Docket No. SJC-09460)
(Feb. 9, 2006).
Identification - ‘Showup’
Where a defendant has been convicted of
assault with intent to rape a child under the age
of sixteen years, assault with intent to kidnap
and assault and battery,the convictions should
be affirmed because the defendant has not
shown that the one-on-one “showup”identification
by the victim was “so unnecessarily suggestive
and conducive to irreparable mistaken
identification” as to deny the defendant due
process of law.
Commonwealth v. Martin (Lawyers Weekly
No. 10-123-06) (56 pages) (Cowin, J.) (Cordy, J.,
with whom Marshall, C.J., and Ireland, J., join,
dissenting) (SJC) Pretrial motion to suppress evidence
heard by Dolan,J.; motion to dismiss heard
by Connon, J.; cases tried before Graham, J., in
Superior Court.J.Thomas Kirkman for the commonwealth;
Edward J. DeAngelo for the defendant;
David M. Skeels, for Committee for Public
Counsel Services,amicus curiae,submitted a brief
(Docket No. SJC-09585) (July 19, 2006).
Latent fingerprints
Where a defendant’s motion to exclude fingerprint
evidence was denied,that ruling must
be reversed on the ground that the commonwealth
did not establish a sufficient foundation
for the admission of expert evidence regarding
latent fingerprints.
Commonwealth v. Patterson (Lawyers Weekly
No.10-198-05) (44 pages) (Cordy,J.) (SJC) Pretrial
motion to suppress evidence heard by Hinkle,J.,in
Superior Court.John H.Cunha Jr.,Helen
Holcomb and Charles Allan Hope for the defendant;
Donna Jalbert Patalano for the commonwealth;
the following submitted briefs for amici
curiae: Robert C. Cosgrove for District Attorney
for the Berkshire District and others; David M.
Siegel, Stanley Z. Fisher and Daniel Givelber for
New England Innocence Project and others; Lisa
J.Steele for National Association of Criminal Defense
Lawyers and others;LaDonna J.Hatton and
Christopher Pohl for Secretary of Public Safety
(Docket No. SJC-09478) (Dec. 27, 2005).
Prior bad acts -
Assault and battery
Where a defendant was convicted of assault
and battery,the conviction must be affirmed be-

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cause the trial court committed no error by admitting
evidence of the defendant’s prior bad acts.
Commonwealth v. Butler (Lawyers Weekly
No. 10-193-05) (13 pages) (Greaney, J.) (SJC)
Case tried before Rufo, J., in District Court.
Amanda Lovell and Catherine N.Tucker for the
commonwealth; Daniel F. de Abreu for the defendant
(Docket No.SJC-09551) (Dec.20,2005).
Psychiatric testimony -
Sex offender
Where a defendant, charged with being a
sexually dangerous person, was denied an opportunity
to present psychiatric evidence based
on personal interviews with his own psychiatric
expert, this was not a due process violation
given that the defendant exercised his right
to refuse to be interviewed by two court-appointed
qualified examiners.
Commonwealth v. Connors (Lawyers Weekly
No. 10-124-06) (12 pages) (Ireland, J.) (SJC)
Pretrial motion to present certain psychiatric evidence
heard by Burnes, J.; case tried before her.
Edward B. Fogarty for the defendant; Sheryl F.
Grant for the commonwealth (Docket No. SJC-
09610) (July 19, 2006).
chusetts Public Interest Research Group (Docket
No. SJC-09622) (Aug. 23, 2006).
Excess coverage - Insurers
Insolvency Fund - Exhaustion
Where (1) a plaintiff manufacturer, facing
potential liability for asbestos-related injuries,
filed a complaint seeking a declaration that its
excess insurance providers had a duty to defend
and indemnify and (2) a judge ruled that,
with respect to a series of policies issued by a
now-insolvent insurance company,the ‘trigger
of coverage’ is bodily injury occurring during
the policy period, we conclude that, as to two
of those policies, coverage is triggered by asbestos
exposure or inhalation,and not by bodily
injury, during the policy period.
We go on to hold that the judge was correct
in ruling that: the Massachusetts Insurers Insolvency
Fund’s liability for the excess insurer’s
duties to defend and indemnify is not triggered
until the policyholder has exhausted the
limits of all applicable solvent excess policies;
and that a settlement agreement with a solvent
carrier for less than the policy’s stated limits
does not constitute exhaustion.
A.W. Chesterton Co. v. Massachusetts Insurers
Insolvency Fund (Lawyers Weekly No. 10-
184-05) (37 pages) (Greaney, J.) (SJC) Martin
F. Gaynor III and Nicholas D. Stellakis for the
plaintiff; Joseph C.Tanski,Gregory P.Deschenes,
Gregg A. Rubenstein and Christine Vargas
Suthoff for the defendant. The following submitted
briefs for amici curiae: Laura A.Foggan,
Alicia C. Ritter and Michael R. Coppock for
Complex Insurance Claims Litigation Association;
David L.Elkind,Elizabeth A.Sherwin,John
A. Gibbons, Martin C. Pentz, Karen L. Crocker,
Michael P. Angelini and Vincent F. O’Rourke Jr.
for Massachusetts Electric Company and another
(Docket No. SJC-09498) (Dec. 12, 2005).
PIP - Jury trial
Where (1) a plaintiff medical provider filed
suit seeking payment for services under the
personal injury protection (PIP) program and
(2) the defendant insurance company requested
a jury trial, that request was correctly
granted under G.L.c. 90, §34M.
Boehm v.The Premier Insurance Co.(Lawyers
Weekly No. 10-082-06) (6 pages) (Marshall, C.J.)
(SJC) Case tried before Dowling, J., in District
Court. Francis A. Gaimari for the plaintiff;
Christopher M. Mountain for the defendant
(Docket No. SJC-09638) (May 12, 2006).
Pollution exclusion -
Oil truck - ‘In transit’
Where (1) oil leaked from a plaintiff policyholder’s
delivery truck while it was parked
overnight, (2) the policyholder sought coverage
under a commercial automobile insurance
policy issued by the defendant insurance company
and (3) the insurer denied coverage on
the basis of a pollution exclusion clause referring
to pollutants ‘stored ... upon the covered
auto,’ the insurance company acted unjustifiably
in light of the fact that the policy impos-
Continued on page B16
Rape - ‘First complaint’
Where a defendant has been convicted of
child rape and indecent assault and battery,the
convictions should be affirmed, as the trial
judge committed no error in admitting “fresh
complaint” evidence.
Commonwealth v.King (Lawyers Weekly No.
10-158-05) (47 pages) (Cowin, J.) (SJC) Cases
tried before Patrick F. Brady, J., in Superior
Court. Robert O. Berger III for the defendant;
Mary E. Lee for the commonwealth; the following
submitted briefs for amici curiae: Lisa J.
Steele for The National Association of Criminal
Defense Lawyers; William J. Meade for District
Attorney for the Bristol District and others; Djuna
E.Perkins for Jane Doe,Inc.,and others; Jane
Larmon White for Committee for Public Counsel
Services; Wendy J. Murphy for Victim Advocacy
and Research Group (Docket No. SJC-
09417) (Sept. 29, 2005).
Unavailable witnesses -
Out-of-court statements
Where a defendant has been convicted of
assault and battery, the judgment must be vacated
and a new trial ordered,as the judge erred
in permitting police witnesses to testify as to
statements made at the scene by two eyewitnesses
(the defendant’s son and daughter) who
were unavailable at trial.
Commonwealth v.Rodriguez (Lawyers Weekly
No.10-143-05) (3 pages) (Rescript) Appealed
from a decision by Brennan,J.,in District Court.
Melissa P.White Ellis for the defendant; Catherine
Langevin Semel and Jana L.DiNatale for the
commonwealth (Docket No. SJC-09352).
Insurance
Assigned risk plan -
High-risk drivers
Where a judge struck down a decision by
the Commissioner of Insurance to approve an
assigned risk plan for high-risk drivers unable
to obtain private automobile insurance in the
voluntary market, the judge’s ruling must be
reversed, as the Commission’s plan is not prohibited
by G.L.c. 175, §113H.
Commerce Insurance Co., et al. v. Commissioner
of Insurance, et al. (Lawyers Weekly No.
10-138-06) (23 pages) (Spina, J.) (SJC) Case
heard by Gants,J.,on a motion for judgment on
the pleadings.Thomas A.Barnico and Elisabeth
Ditomassi for Commissioner of Insurance; Nelson
G. Apjohn, James A. Ermilio and Daniel P.
Olohan for Commerce Insurance Company;
Stephen J.D’Amato for Center for Insurance Research;
Roberta R. Fitzpatrick for Arbella Mutual
Insurance Company; the following submitted
briefs for amici curiae: Edward J. Donahue
Jr., Luke A. Dillon III, Peter S. Rice, Mark A.
Walsh, Elizabeth R. Cerda and Peter T. Robertson
for Massachusetts Insurance Federation,
Inc., and others; Joshua R. Kratka for Massa-

B16 | Massachusetts Lawyers Weekly | September 25, 2006 Subscribe Today - Call 1-800-451-9998 www.masslawyersweekly.com | Cite this page 35 MLW 288
Continued from page B15
es on the insurer a duty to indemnify the policyholder
for the release of any pollutants while
being transported or otherwise in the course
of transit.
City Fuel Corp. v. National Fire Insurance
Company of Hartford (Lawyers Weekly No.10-
078-06) (9 pages) (Cordy, J.) (SJC) Case heard
by Walker, J., on a motion for summary judgment.
Owen Gallagher and Kara Larzelere for
the plaintiff; Michael F.Aylward and Gareth W.
Notis for the defendant (Docket No.SJC-09623)
(May 10, 2006).
Termination of auto policy -
Notice - Business records
Where a summary judgment was entered in
favor of a plaintiff who was struck by a vehicle
owned and operated by the defendant’s insured,
the judgment must be vacated and the
matter remanded in light of a material issue as
to whether notice of the defendant’s pre-accident
termination of the insured’s policy had
been sent to the registrar of motor vehicles.
McLaughlin v. CGU Insurance Co. (Lawyers
Weekly No. 10-017-06) (9 pages) (Cordy, J.)
(SJC) Case heard by Borenstein, J., on motions
for summary judgment. Clyde K. Hanyen, Jr.,
for the defendant; Eric S. Kupperstein for the
plaintiff (Docket No.SJC-09528) (Jan.19,2006).
Uninsured motorist benefits
Where (1) the plaintiff insured operator of
a motor vehicle was injured as the result of the
combined negligence of two tortfeasors, one
of whom was insured under an automobile liability
insurance policy and the other of whom
was an unidentified hit and run driver, (2) the
plaintiff has received indemnity payment from
the insurance carrier for the identified tortfeasor
and (3) the just-mentioned payment has
not been sufficient to compensate the plaintiff
fully for his damages, we hold that uninsured
motorist benefits are available to the plaintiff
under G.L.c. 175, §113L and the standard
Massachusetts automobile insurance policy.
Gabriel v. The Premier Insurance Company
of Massachusetts (Lawyers Weekly No. 10-015-
06) (2 pages) (Rescript) (SJC) Case heard by
Rup, J., in the Superior Court. James M. Walsh
for the plaintiff; Peter E. Heppner for the defendant
(Docket No. SJC-09454) (Jan. 18, 2006).
Jurisdiction
Joint bank account -
Death of depositor
Where the plaintiff administrators of a decedent’s
estate brought suit seeking the return of
money taken by the defendant from a California
bank account held jointly by the defendant
and the decedent, judgment should have entered
for the defendant based on California law.
Barboza, et al. v. McLeod (Lawyers Weekly
No. 10-137-06) (14 pages) (Ireland, J.) (SJC)
Case heard by LaStaiti,J.,in the Probate & Family
Court. David Berman for the defendant;
Donald H. Barnes Jr. for the plaintiffs (Docket
No. SJC-09596) (Aug. 18, 2006).
Jury and jurors
Impartiality - Racial prejudice
Where a defendant has been convicted of
heroin and cocaine charges, a new trial must
be ordered because the judge’s questioning of
a juror was insufficient to dispel doubts concerning
the juror’s impartiality.
Commonwealth v.Clark (Lawyers Weekly No.
10-077-06) (17 pages) (Spina, J.) (SJC) Cases
tried before McDonald, J., in Superior Court.
Angela G. Lehman on appeal for the defendant;
Bethany C.Lynch for the commonwealth (Docket
No. SJC-09522) (May 8, 2006).
Jury trial - Land Court - Waiver
Where a Land Court judge granted a defendant
a jury trial, this was error in light of
the fact that the defendant failed to comply
with the statutory requirements for exercising
its right to a jury trial.
PROFILES OF THE JUSTICES
Senior Housing Properties Trust, et al. v.
HealthSouth Corp. (and a companion case)
(Lawyers Weekly No. 10-122-06) (22 pages)
(Marshall, C.J.) (SJC) Demand for jury trial
heard by Long, J., in Land Court. Paul B. Galvani
and Jane E.Willis for Senior Housing Properties
Trust & another.Philip Y.Brown and Brian
R. Birke for HRPT Properties Trust; Gary R.
Greenberg and Jonathan D. Cohen for Greenery
Securities Corporation and another (Docket
No. SJC-09594) (July 17, 2006).
Juvenile
Dangerousness -
Continuance - Bail
Where a Juvenile Court judge released a juvenile
on bail after ordering a continuance of
a dangerousness hearing, this was beyond the
judge’s discretion.
Commonwealth v. Lester L., a juvenile
(Lawyers Weekly No. 10-160-05) (17 pages)
(Cowin, J.) (SJC) Case reported by Spina, J., sitting
as single justice.Jane Davidson Montori for
the commonwealth; Erica E. Cushna for the juvenile
(Docket No. SJC-09427) (Oct. 7, 2005).
Receiving stolen vehicle -
Possession
Where a juvenile was adjudicated delinquent
based on a finding of guilt on a charge of receiving
a stolen motor vehicle, the juvenile’s motion
for a required finding of not guilty should have
been allowed on the ground that the evidence did
not prove the possession element of the offense.
Commonwealth v. Darnell D., a juvenile
(Lawyers Weekly No. 10-200-05) (7 pages)
(Cowin, J.) (SJC) Case heard by Lauranzano, J.,
in Juvenile Court.Jennifer H.O’Brien for the juvenile;
Kenneth E. Steinfield for the commonwealth
(Docket No.SJC-09491) (Dec.29,2005).
JUSTICE ROBERT
J. CORDY
Appointed to SJC: 2001
Will reach retirement age: 2019
Majority opinions written this year: 25
Dissenting opinions written this year: 3
Total dissenting votes cast: 3
Notable decision: Humphrey v. Byron, et
al. (Lawyers Weekly No. 10-125-06),
which held that commercial landlords,
unlike residential landlords, owe no duty
of care to non-tenants legitimately on
leased premises.
Labor
Police union - Racial profiling -
Officer identification
Where a union sought a preliminary injunction
to prevent the collection of officer
identification numbers in connection with the
Boston police department’s gathering of data
concerning traffic stops,a single justice’s order
staying the information collection should be
vacated, as officer identification numbers are
required to be collected by state statute.
Boston Police Patrolmen’sAssociation,Inc.v.Police
Department of Boston, et al. (Lawyers Weekly
No. 10-024-06) (11 pages) (Ireland, J.) (SJC) Motion
for preliminary injunction heard by Connors,
J.,in Superior Court.Bryan C.Decker and John M.
Becker for the plaintiff; Amy E.Ambarik for police
department of Boston; Susan M. Prosnitz and
Christopher Pohl for Secretary of Public Safety;the
following submitted briefs for amici curiae: Cristina
Beamud for city of Boston and others; John M.
Collins for Massachusetts Chiefs of Police Association,
Inc.; John Reinstein for American Civil Liberties
Union of Massachusetts and others (Docket
No. SJC-09621) (Feb. 8, 2006).
Prevailing wages -
Truck drivers
Where (1) the Department of Labor and Industries
established a policy in 1993 requiring
that truck drivers on public construction contracts
be paid prevailing wages for the time
spent hauling bituminous concrete to and from
construction sites and (2) the deputy director
of the division of occupational safety in 2001
rescinded the policy, the deputy director’s action
should be upheld because the plaintiff labor
organizations have not met their burden
to show that the decision of the deputy director
was arbitrary or capricious and because we
grant due deference to the deputy director’s interpretation
of the prevailing wage statute.
Teamsters Joint Council No. 10, et al. v. Director
of the Department of Labor and Workforce
Development, et al. (Lawyers Weekly No.
10-107-06) (17 pages) (Ireland, J.) (SJC) Case
heard by Riley, J., on motions for judgment on
the pleadings. Mark D. Nielsen and Kathryn B.
Palmer for Department of Labor and another;
John D. O’Reilly III for Palmer Paving Corporation
and others; Paul F. Kelly for the plaintiffs’
Richard D. Wayne and Willard Krasnow, for
Utility Contractors Association of New England,
Inc., and others, amici curiae, submitted a brief
(Docket No. SJC-09505) (June 23, 2006).
Landlord and tenant
Commercial lease -
Duty to third parties
Where a commercial landlord was sued by
a tenant’s employee who was injured in a fall
down a stairway, the defendant was correctly
awarded summary judgment on the ground
that the defendant — unlike a residential landlord
— owed no duty of care to non-tenants
legitimately on the leased premises.
Humphrey v.Byron,et al.(Lawyers Weekly No.
10-125-06) (15 pages) (Cordy,J.) (SJC) Case heard
by Troy, J., on a motion for summary judgment.
Joseph C. Borsellino and Neil D. Schnurbach for
the plaintiff; Thomas R. Murphy for the defendants;the
following submitted briefs for amici curiae:Christopher
A.Kenney and Edward S.Cheng
for Massachusetts Defense Lawyers Association;
Andrew R.Gainger,Martin J.Newhouse and Ben
Robbins for New England Legal Foundation and
another; Patrick T. Jones and J. Michael Conley
for Massachusetts Academy of Trial Attorneys
(Docket No. SJC-09449) (July 21, 2006).
Licenses and permits
Medical license
revocation - Misconduct
with adolescent patients
Where the defendant Board of Registration
in Medicine has revoked a plaintiff physician’s
license to practice medicine, we hold that the
defendant’s decision should be affirmed as it is
supported by substantial evidence that the
plaintiff committed repeated acts of misconduct
with adolescent female patients.
Ingalls v. Board of Registration in Medicine
(Lawyers Weekly No. 10-165-05) (19 pages) (Ireland,J.)
(SJC) Case reported by Spina,J.,sitting as
Single Justice. Eve Slattery and Paul Cirel for the
plaintiff; William W. Porter for the defendant
(Docket No. SJC-09403) (Nov. 14, 2005).
Municipal
Urban renewal plan - Change
Where the defendant city in 2002 altered a
1980 urban renewal plan so as to remove all light
industrial uses from the redevelopment area,
the city’s decision should be upheld,as the 2002
change to the plan was not a “new plan”requiring
new or renewed findings of eligibility.
Central Steel Supply Co., Inc., et al. v. Planning
Board of Somerville, et al. (Lawyers Weekly
No. 10-126-06) (17 pages) (Ireland, J.) (SJC)
Case heard by Kern,J.,on motions for judgment
on the pleadings. James D. Masterman for the
plaintiffs; Annapurna Balakrishna for Department
of Housing and Community Development;
Anne M.Thomas for Somerville Redevelopment
Authority; David P. Shapiro for Planning Board
of Somerville, submitted a brief.; the following
submitted briefs for amici curiae: William H.
Mellor, Clark M. Neily III, Dana Berliner and
Jorge Schmidt for The Institute for Justice and
another; Michael E. Malamut and Martin J.
Newhouse for New England Legal Foundation
(Docket No. SJC-09545) (July 24, 2006).
Negligence
Firearms - Homeowner’s
liability - Unsupervised access
Where (1) a defendant permitted the man
with whom she lived to keep a sizeable gun collection
in the basement of the defendant’s
house,(2) the man’s son took one of these guns
and shot a police officer to death and (3) a lawsuit
was then brought against the defendant,
an award of summary judgment for the defendant
must be affirmed as to counts of public
nuisance and strict liability but reversed as
to a negligence count.
Jupin, et al. v. Kask (Lawyers Weekly No. 10-
115-06) (29 pages) (Cordy, J.) (SJC) Case heard
by Fecteau, J., on a motion for summary judgment.
Douglas L. Fox for Joanne D. Jupin; June
A. Harris for the defendant; John Mizhii and C.
Deborah Phillips, for the Town of Westminster,
were present but did not argue; Dennis A.Henigan,
Elizabeth S. Haile, Daniel R. Vice, Daniel
C. Swanson and Clifford J. Zatz, for The Brady
Center to Prevent Gun Violence and others,amici
curiae, submitted a brief (Docket No. SJC-
09538) (June 30, 2006).
Personal injury -
Transportation authority
Where a jury rendered a special verdict finding
the defendant transportation authority liable
for reckless conduct in connection with a
plaintiff’s loss of part of a limb, we conclude
that the evidence did not support a finding of
reckless conduct and therefore that the defendant
is entitled to judgment notwithstanding
the verdict.
Montes v. Massachusetts Bay Transportation
Authority (Lawyers Weekly No. 10-039-06) (10
pages) (Spina, J.) (SJC) Case tried before Lopez,
J., and a motion for judgment notwithstanding
the verdict was heard by her. Joseph G. Abromovitz
for the plaintiff; Jeremiah P. Sullivan Jr.
and Ann Marie Johnnene for the defendant
(Docket No. SJC-09568) (March 9, 2006).
Recklessness -
Operation of train
Where a judge dismissed a complaint brought
on behalf of a teenager who was struck and killed
by a train, the dismissal order must be vacated
with respect to claims of recklessness.
Boyd v. National Railroad Passenger Corp.,
et al.(Lawyers Weekly No.10-065-06) (21 pages)

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September 25, 2006 | Massachusetts Lawyers Weekly | B17
(Spina,J.) (SJC) Motion for summary judgment
heard by Kottmyer, J.; motion for reconsideration
heard by her. John B. Flemming and Joseph
P. Musacchio for the plaintiff; David T. Mitrou
for the defendants (Docket No. SJC-09543)
(April 14, 2006).
Statute of repose -
Continuing treatment
Where a defendant physician moved for
summary judgment with respect to a malpractice
claim brought by the plaintiff,the motion
should have been allowed,as (1) the complaint
was untimely under the statute of repose
and (2) the repose period cannot be tolled under
the continuing treatment doctrine.
Rudenauer v. Zafiropoulos, et al. (Lawyers
Weekly No. 10-175-05) (12 pages) (Cowin, J.)
(SJC) Motion for summary judgment heard by
Fishman,J.; application for leave to prosecute an
interlocutory appeal allowed by Green, J., in the
Appeals Court. Barry D. Lang for the plaintiff;
Edward T. Hinchey and Stacey E. Morris for the
defendants; Carl Valvo and Kenneth W. Terrel,
for Professional Liability Foundation, Ltd., amicus
curiae, submitted a brief (Docket No. SJC-
09455) (Nov. 21, 2005).
Statute of repose -
Tolling - Misrepresentation
Where the plaintiffs’ medical malpractice
complaint was dismissed based on the statute
of repose,the judgment should be affirmed despite
the plaintiffs’ assertion that fraudulent
concealment on the part of the defendants
served to toll the repose period.
Joslyn, et al. v. Chang, et al. (Lawyers Weekly
No.10-174-05) (13 pages) (Cowin,J.) (SJC) Case
heard by Connolly, J., on a motion for summary
judgment. Charlotte E. Glinka for the plaintiffs;
George E. Wakeman Jr. for the defendants
(Docket No. SJC-09539) (Nov. 21, 2005).
Parent and child
Custody - Foreign judgment
Where a mother living in Massachusetts has
been ordered to return to Trinidad with her
child, that order should be affirmed in light of
a Trinidad court order prohibiting her from
taking the child out of that country.
Khan v.Samini (Lawyers Weekly No.10-032-
06) (17 pages) (Greaney,J.) (SJC) Case heard by
Gould, J., in Probate & Family Court. Michael
J. Traft for the mother; Robert J. Rivers Jr. and
Tannaz N. Saponaro for the father (Docket No.
SJC-09644) (Feb. 15, 2006).
Life support withdrawal -
Stepfather’s standing
Where a judge has issued an order to withdraw
life support for a critically injured child
in the custody of the Department of Social Services,
the order should be affirmed, as the
child’s stepfather has no standing to challenge
the judge’s findings and order.
Care and Protection of Sharlene (Lawyers
Weekly No. 10-010-06) (30 pages) (Greaney, J.)
(SJC) Case reported by Cowin, J., sitting as single
justice. John J. Egan, John M. Thompson and Edward
J.McDonough Jr.for the petitioner;Virginia
A.Peel for Department of Social Services;Lisa M.
Kling for Sharlene; Pamela J. Szmyt Hastings, for
the siblings of Sharlene,amici curiae,submitted a
brief (Docket No. SJC-09629) (Jan. 17, 2006).
Out-of-state removal
Where a divorced mother challenges a court
order enjoining her from moving out-of-state
with her children,the order should be affirmed
based on the best interests of the children.
Mason v. Coleman (Lawyers Weekly No. 10-
117-06) (17 pages) (Cowin, J.) (SJC) Complaint
for modification heard by Dilday, J., in the Probate
& Family Court. John T. Ouderkirk Jr. and
Carol A. Phinney for the defendant; Adam A.
Rowe for the plaintiff; the following submitted
briefs for amici curiae: Pauline Quirion, Fern
Frolin,Warren Fitzgerald and Martin Healy for
Massachusetts Bar Association; Daniel B.Hogan
for Fathers and Families, Inc. (Docket No. SJC-
09625) (July 10, 2006).
Temporary custody - Hearing
Where the Department of Social Services
filed a petition for temporary custody of a couple’s
children,the petition was sufficient under
G.L.c. 119, §24 and thus the mother’s request
for dismissal of the petition must be denied.
Care and Protection of Lillian,et al.(Lawyers
Weekly No. 10-170-05) (15 pages) (Ireland, J.)
(SJC) Case reported by Ireland, J., sitting as single
justice. Mark A. Papirio and Michael T.
Spadea for the mother; Pamela J. Szmyt Hastings
and Henry Porter for the father;Virginia A.
Peel for Department of Social Services; Dorothy
Meyer Storrow for Karen and others; John T.
Ouderkirk Jr.for Lillian,was present but did not
argue (Docket No. SJC-09535) (Nov. 18, 2005).
Unfitness - Temporary nature
Where the Appeals Court vacated a Juvenile
Court judge’s order terminating a mother’s
parental rights, the order should be reinstated
because, contrary to the Appeals Court’s conclusion,the
judge did make necessary findings
regarding whether the mother’s unfitness was
temporary.
Adoption of Elena (and two companion cases)
(Lawyers Weekly No. 10-022-06) (17 pages)
(Spina, J.) (SJC) Cases heard by Corbett, J., in
Juvenile Court.Brian Pariser for Department of
Social Services; Garry M. O’Brien for the children;
Robert J. McCarthy Jr. for the mother
(Docket No. SJC-09586) (Jan. 31, 2006).
Prisons
Prison uprising - Building
destruction while unlawfully
assembled - Hostage taking
Where defendants,in connection with an inmate
uprising at the Bristol County House of
Correction,were convicted of building destruction
while unlawfully assembled, those convictions
must be reversed because the controlling
statute only refers to conduct in a city or town.
Commonwealth v. Spearin (and eight companion
cases) (Lawyers Weekly No. 10-073-06)
(16 pages) (Greaney, J.) (SJC) Cases tried before
Connon, J., in Superior Court. Alan D. Campbell
for Gualter M.Camara; Joseph J.Mazza for
Randall Spearin; David B. Mark for the commonwealth
(Docket No. SJC-09524).
Religious freedom -
Muslim faith - Meals
Where a plaintiff prison inmate brought suit
claiming that he was unlawfully prevented
from practicing his Islamic faith by reason of
prison policies and regulations regarding meals
and the possession of personal and religious
items, a judgment for the defendants must be
vacated as to the food claim and affirmed as to
the other claims.
Rasheed v. Commissioner of Correction, et al.
(Lawyers Weekly No. 10-061-06) (23 pages)
(Cordy, J.) (SJC) Case heard by Sanders, J., on
motions for summary judgment. Neil Mc-
Continued on page B18

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Continued from page B17
Garaghan, Jennifer L. Stewart and Carol E.
Head for the plaintiff; Richard C.McFarland for
Commissioner of Correction; Derek L.Gaubatz,
Lisa Pirozzolo and Steven P. Lehotsky, for Becket
Fund for Religious Liberty and another, amici
curiae, submitted a brief (Docket No. SJC-
09617) (April 7, 2006).
Religious freedom -
Muslim faith
Where the defendant Department of Correction
and two of its codefendant officials
were awarded summary judgment in a suit
brought by a plaintiff Muslim inmate who alleged
infringement of his right to the free exercise
of his religion, the judgment should be
affirmed because “the record reflects that the
defendants attempted to accommodate the religious
needs and requests of inmates practicing
the Muslim faith, within bounds that they
reasonably concluded were lawful and necessary
to maintain the secure and efficient operation
of the prison.”
Ahmad v. Department of Correction, et al.
(Lawyers Weekly No. 10-060-06) (14 pages)
(Cordy,J.) (SJC) Case heard by Kern,J.,on a motion
for summary judgment. Neil McGaraghan
and Katherine W. Grearson for the plaintiff;
Richard C.McFarland for the defendants (Docket
No. SJC-09477) (April 7, 2006).
Transfer of pretrial detainees
Where a Superior Court judge,at the request
of the Worcester district attorney, ordered the
transfer of pretrial detainees from a county jail
to a state correctional facility, this order was
impermissible under G.L.c. 276, §52A and
must accordingly be vacated.
Commissioner of Correction v.Superior Court
Department of the Trial Court for the County
of Worcester,et al.(Lawyers Weekly No.10-035-
06) (8 pages) (Cordy, J.) (SJC) Case reported by
Cordy, J., sitting as single justice. William D.
Saltzman for the plaintiff; Ellyn H.Lazar-Moore
for the District Attorney for the Middle District
(Docket No. SJC-09634) (Feb. 27, 2006).
Products liability
‘Sophisticated user’defense
Where a jury returned a verdict for the defendant
bungee cord manufacturer in a product
liability case,the verdict should be affirmed,
as the trial judge corrected gave the jury a “sophisticated
user” instruction.
Carrel v.National Cord & Braid Corp.(Lawyers
Weekly No.10-135-06) (30 pages) (Cordy,J.) (SJC)
Case tried before Brady,J.,in Superior Court.Edward
T. Dangel III for the plaintiff; Ralph C. Sullivan
and Richard W. Jensen for the defendant
(Docket No. SJC-09541) (Aug. 15, 2006).
Real property
Historic district - Exemption
Where an ordinance was enacted in 1972
exempting from the Springfield Historical
Commission’s authority all property owned by
the Springfield Library and Museum Association
and Roman Catholic Bishop of the Diocese
of Springfield,we hold that the exemption
applies only to property acquired by the time
the ordinance was enacted.
Springfield Preservation Trust, Inc. v. Springfield
Library and Museums Association, Inc., et
al. (Lawyers Weekly No. 10-134-06) (33 pages)
(Sosman, J.) (Ireland, J., with whom Spina and
Cowin,JJ.,join,concurring in part and dissenting
in part) (SJC) Case heard by McDonald,J.,on motions
for summary judgment and a motion for
partial summary judgment. Mark D. Mason for
Springfield Library & Museums Association,Inc.;
John J.Egan for Roman Catholic Bishop of Springfield;
John Egnal and Terry Scott Nagel for the
plaintiff (Docket No.SJC-09600) (Aug.14,2006).
Implied easement
Where (1) plaintiffs,who own lots in an Oak
Bluffs subdivision,sought a judgment that four
parcels of subdivision land designated as parks
are burdened with an easement in the plaintiffs’
favor and (2) a Land Court judge rejected
the plaintiffs’ request, we conclude that the
judge erred, as evidence indicates that an implied
easement exists with respect to the parks.
Reagan,et al.v.Brissey,et al.(Lawyers Weekly
No. 10-058-06) (16 pages) (Greaney, J.) (SJC)
Case heard by Scheier, J., on motions for summary
judgment. Daniel C. Perry for the plaintiffs;
Ronald H. Rappaport for the defendant
town of Oak Bluffs; Kenneth L. Kimmel for defendant
Louise Brissey, et al. (Docket No. SJC-
09630) (April 4, 2006).
Restrictions -
Specificity - Extension
Where a plaintiff trust filed suit claiming to
be a beneficiary of a restriction on the defendants’
land, a declaratory judgment in the defendants’
favor must be affirmed because (1)
the restriction does not specifically mention
either the plaintiff nor its land and (2) the restriction
was not lawfully extended beyond its
specified duration.
Brear v.Fagan,et al.(Lawyers Weekly No.10-
104-06) (16 pages) (Sosman, J.) (SJC) Case
heard by Lombardi, J., in Land Court. Donald
K. Freyleue for the plaintiff; Michael P. McCarron
for the defendants (Docket No. SJC-09657)
(June 19, 2006).
Title dispute -
Civil rights violation
Where a title dispute arose between the plaintiff
and defendants over a triangular parcel located
between their Marshfield properties, we
hold that a judge acted permissibly on the evidence
in ruling (1) that an escrow agreement
concerning transfer of the parcel in question
from the plaintiff to the defendants was enforceable
and (2) that delivery of the relevant
deed effectively conveyed title to the defendants.
Haufler,trustee,v.Zotos,et al.(Lawyers
Weekly No. 10-063-06) (29 pages) (Marshall,
C.J.) (SJC) Case heard by Hely, J., in the Superior
Court. J. Gavin Cockfield for the plaintiff;
Robert E. Kelley for the defendants (Docket No.
SJC-09502) (April 12, 2006).
Retirement
Criminal convictions - Forfeiture
Where a clerk-magistrate of the Boston Juvenile
Court has been convicted of criminal
offenses, he has forfeited his entitlement to a
retirement allowance as a member of the state
employees’ retirement system.
State Board of Retirement v. Bulger, et al.
(Lawyers Weekly No. 10-037-06) (17 pages)
(Spina, J.) (SJC) Case reported by Sosman, J., sitting
as single justice.Grace H.Lee,Nicola Favovito
and Rehana Thomas for the plaintiff; Paul T.
Hynes and Catherine A.Highet for John P.Bulger
(Docket No. SJC-09494) (March 6, 2006).
Public employee -
Forfeiture vote
Where (1) the plaintiff State Board of Retirement
voted to implement the pension forfeiture
provisions of G.L.c. 32, §15(4), against a defendant
former state representative who had been
convicted in federal court of mail fraud, wire
fraud,interstate travel to commit bribery and conspiracy
to commit those crimes and (2) a state
district court judge subsequently ruled that the
vote was time-barred, we hold that the judge
erred, as pension forfeiture proceedings under
§15(4) are not subject to any statute of limitations.
State Board of Retirement,et al.v.Woodward,
et al.(Lawyers Weekly No.10-084-06) (15 pages)
(Spina, J.) (SJC) Case reported by Spina, J., sitting
as single justice. Peter Sacks for the plaintiffs;
Edward J. McCormick II and Elizabeth
Maitland for defendant Francis Woodward
(Docket No. SJC-09575) (May 15, 2006).
Search and seizure
Drug-sniffing dog - Police stop
Where a defendant has been convicted of
cocaine trafficking, the conviction should be
affirmed, as the use of a drug-sniffing dog to
detect cocaine in the defendant’s car, after the
car had been pulled over by the police,was not
unconstitutional.
Commonwealth v.Feyenord (Lawyers Weekly
No. 10-146-05) (35 pages) (Cordy, J.) (Greaney,
J., concurring) (Marshall, C.J., joined by
Ireland, J., dissenting) (SJC) Pretrial motion to
suppress evidence was heard by Hillman,J.; case
tried before him. Michael J. Traft for the defendant;
Michelle R. King for the commonwealth
(Docket No. SJC-09410) (Sept. 2, 2005).
Unexcused absence - Waiver
Where a narcotics defendant failed to appear
at the scheduled hearing on his suppression
motion, a judge acted improperly in ruling
the motion automatically waived.
Having said this, we direct that the judge’s
order be vacated and the case remanded for a
hearing on the motion.
We go on today to rule that it would have
been within the judge’s discretion in the present
case to find that the defendant had waived
his right to be present at the suppression hearing
and to conduct the hearing without him.
Robinson v.Commonwealth (Lawyers Weekly
No. 10-166-05) (16 pages) (Spina, J.) (SJC)
Case was reported by Cowin, J., sitting as Single
Justice.James S.Murphy for the defendant; Carolyn
A. Burbine for the commonwealth (Docket
No. SJC-09425) (Nov. 14, 2005).
Securities
IPO - Broker’s liability -
Reliance damages - G.L.c. 93A
Where plaintiffs filed suit alleging that they
lost $12 million when the defendant brokerage
firm failed to allocate shares to the plaintiffs
in connection with a company’s initial
public offering,a judge committed no error in
awarding the defendant summary judgment
on the plaintiffs’ contract claim, as the parties’
oral agreement contained an implicit condition
precedent that was not met.
We go on to affirm the judge’s decision to
award the plaintiffs reliance damages on a misrepresentation
claim plus treble damages and
counsel fees on a G.L.c. 93A count.
Twin Fires Investment, LLC, et al. v. Morgan
Stanley Dean Witter & Co.,et al.(Lawyers Weekly
No.10-179-05) (32 pages) (Marshall,C.J.) (SJC)
Case heard by Gants,J.,in Superior Court.Robert
D.Friedman,Susan E.Stenger and Andrew F.Caplan
for the plaintiffs;William Pratt,Eric F.Leon,
David I. Horowitz (of New York), John R. Snyder
and Carol E.Head for the defendants (Docket No.
SJC-09406) (Nov. 30, 2005).
Taxation
Real estate -
Exemption - Veterans -
Residency requirement
Where a state law, which grants certain disabled
veterans a partial real estate tax exemption,
contains a residency requirement limiting
the exemption to veterans who have
resided in Massachusetts “for five consecutive
years next prior to date of filing for exemptions,”we
hold that the residency requirement
does not violate (1) the equal protection and
privileges and immunities clauses of the Fourteenth
Amendment to the U.S.Constitution or
(2) Part 1,article 6 of the Declaration of Rights
of the Massachusetts Constitution.
Sylvester v. Commissioner of Revenue, et al.
(Lawyers Weekly No. 10-167-05) (16 pages)
(Greaney, J.) (SJC) Case heard by Hines, J., on
motions for summary judgment. Joel Z. Eigerman
for the plaintiff; Thomas A. Barnico and
Daniel J. Hammond for the defendant Commissioner
of Revenue; Bryan R. LeBlanc for the
defendant town of Danvers (Docket No. SJC-
09486) (Nov. 16, 2005).
Tort
Limitations - Sexual
misconduct - Fiduciary duty
Where a plaintiff filed suit alleging that the
defendant counsellor breached his fiduciary
duty by engaging in a sexual relationship with
the plaintiff, a judgment for the defendant
should be affirmed based on the three-year
statute of limitations.
Doe v. Harbor Schools, Inc., et al. (Lawyers
Weekly No. 10-041-06) (26 pages) (Marshall,
C.J.) (SJC) Case heard by Grasso, J., on motions
for summary judgment. Michael D.Riseberg and
Brian R. Birke for Harbor Schools, Inc.; Richard
J.Fallon for the plaintiff (Docket No.SJC-09566)
(March 14, 2006).
Nuisance
Where a defendant (1) placed along the borderline
separating his property from that of a
plaintiff neighbor construction debris and other
items,including portable toilets and an office
trailer,(2) often landed a helicopter near the borderline
and (3) held youth parties of 150-200
people on his property, we hold that the defendant
engaged in activities on his property creating
or maintaining unreasonable aesthetic conditions
for the plaintiff neighbor and that such
actions were actionable as a private nuisance.
Rattigan, trustee, et al. v. Wile, individually
and as trustee (Lawyers Weekly No.10-020-06)
(21 pages) (Cowin,J.) (SJC) Case heard by Staffier,
J., in the Superior Court. Sander A. Rikleen
and John J. Griffin Jr. for the defendant; John
Connolly Jr. and Kevin P. Geaney for the plaintiffs
(Docket No. SJC-09479) (Jan. 25, 2006).
Uniform Anatomical Gift Act -
Consent - ‘Good faith’
Where the plaintiffs allege that, in connection
with their attempt to donate the tissues of
their deceased son for transplantation,the defendants
(the New England Organ Bank and
New England Eye & Tissue Bank) violated the
Uniform Anatomical Gift Act, an award of
summary judgment for the defendants should
be affirmed, as the statute’s “good faith” provision
precludes liability with respect to the sole
instance of statutory noncompliance identified
by the plaintiffs — a failure by the defendants’
agent to make a voice recording of the
plaintiffs’ consent by telephone to organ and
tissue donation.
Carey, et al. v. New England Organ Bank, et
al. (Lawyers Weekly No. 10-045-06) (24 pages)
(Cowin, J.) (SJC) Case heard by Lowy, J., on a
motion for summary judgment. Roy F. Gelineau
and Anthony Kline for the plaintiffs; Pamela S.
Gilman and Andrew R. Weiner for New England
Organ Bank; Brian Sullivan, for New England
Eye & Tissue Transplant Bank and another,
was present but did not argue (Docket No.
SJC-09504) (March 15, 2006).
Wrongful death - Cigarettes
Where a Superior Court judge dismissed a
wrongful death action which (1) was brought
against a cigarette manufacturer and (2) was
predicated on breach of the warranty of merchantability,we
hold that the dismissal was improper
and reverse it.
Haglund,executrix,v.Philip Morris Incorporated
(Lawyers Weekly No. 10-088-06) (22
pages) (Marshall, C.J.) (SJC) Motion to strike
heard by Kern, J., and entry of judgment of dismissal
ordered by her. Stephen R. Fine and
Charles M. Healey III for the plaintiff; Paul E.
Nemser and Roberto M. Braceras for the defendant;
David R. Geiger, Ashley A. Weaver and
Jonathan M. Harrison, on brief, for amicus curiae
Products Liability Advisory Council, Inc.;
Edward L. Sweda Jr., on brief, for amicus curiae
Tobacco Control Resource Center,Inc.(Docket
No. SJC-09483) (May 18, 2006).
Unemployment
compensation
Taxation - Religious exemption
Where a plaintiff claims that he was wrongfully
denied unemployment benefits, his appeal
must fail on the ground that the employer,
a religious school, is not subject to the state
unemployment tax statute.
Bleich v. Maimonides School, et al. (Lawyers
Weekly No.10-101-06) (15 pages) (Marshall,C.J.)
(SJC) Case heard by Zaleski, J., in District Court.

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Michael Magerer for the plaintiff;Michael R.Coppock
for Maimonides School; James J. Arguin for
Division of Unemployment Assistance (Docket
No. SJC-09520) (June 16, 2006).
Wills and trusts
Bank accounts - Estate
property
Where an administratrix seeks a judgment
declaring that the testatrix’s estate includes the
funds in two Massachusetts bank accounts,the
complaint should be dismissed without prejudice
because the requested relief appears not
to be necessary.
Florio v.Florio,et al.(Lawyers Weekly No.10-
147-05) (5 pages) (Rescript) (SJC) M. David
Blake and Carolyn Martello for the plaintiff
(Docket No. SJC-09414) (Sept. 2, 2005).
‘GRATs’- Reformation
Where the settlor of “grantor retained annuity
trusts”seeks reformation of the trusts in light
of a 2003 U.S. Tax Court decision, the reformation
request should be granted in light of the settlor’s
intent concerning her estate tax liability.
Freedman, et al. v. Freedman, et al. (Lawyers
Weekly No. 10-155-05) (4 pages) (Rescript)
(SJC) Appealed from a decision by Greaney, J.,
sitting as single justice.Morris Robinson and Peter
W. KortKamp, for the plaintiffs, submitted a
brief (Docket No. SJC-09475) (Sept. 20, 2005).
Reformation -
Generation-skipping tax
Where the trustee and settlors of an irrevocable
trust seek reformation of the trust,the reformation
should be allowed so as to carry out the
settlors’intentions regarding tax consequences.
Inderieden, et al. v. Downs, et al. (Lawyers
Weekly No. 10-156-05) (3 pages) (Rescript)
(SJC) Case reported by LaPointe, J., of the Probate
& Family Court. Mark S. Gold submitted
a brief for the plaintiffs (Docket No.SJC-09481)
(Sept. 21, 2005).
Reformation - Settlors’intent
Where the settlors, trustees and beneficiaries
seek reformation of an irrevocable trust,the
request should be granted based on evidence
that,because of scrivener’s errors,the trust document
does not reflect the settlors’ intent.
Ryan, et al. v. Ryan, et al. (Lawyers Weekly
No. 10-100-06) (3 pages) (Rescript) (SJC) Case
reported by Kagan, J., in the Probate & Family
Court. Virginia Ann Brophy, for the plaintiff,
submitted a brief (Docket No. SJC-09653)
(June 16, 2006).
Reformation of trust - Taxes
Where a trustee of a revocable family trust
seeks reformation, that request should be
granted in light of the settlor’s intentions regarding
estate tax liability.
Grassian v. Grassian, et al. (Lawyers Weekly
No. 10-162-05) (3 pages) (Rescript) (SJC) Case
reserved and reported by Spina, J.,sitting as single
justice. Ann P. Hochberg, Neil L. Cohen and
J. James Park for the plaintiff (Docket No. SJC-
09423) (Oct. 14, 2005).
Trust reformation
Where reformation has been sought of a
qualified personal residence trust,we conclude
that reformation should be allowed in order to
effectuate the settlor’s intent.
Van Riper v.Van Riper, et al. (Lawyers Weekly
No.10-153-05) (2 pages) (Rescript) (SJC) Case
reserved and reported by Ireland, J., sitting as
single justice.Domenic P.Aiello submitted a brief
for the plaintiff (Docket No. SJC-09506) (Sept.
14, 2005).
Workers’ compensation
Benefit calculation -
‘Average weekly wages’
Where “average weekly wages” must be
determined for a union worker who has
been injured on an entirely union public
works project and is seeking workers’ compensation
benefits, we hold that the plain
language of the applicable statutes [G.L.c.
152, §1(1) and G.L.c. 149, §§26 and 27] requires
that “employer payments into health
and welfare plans, pension plans and supplemental
unemployment benefits (fringe
benefits)” be included in determining the
employee’s average weekly wages.
William McCarthy’s Case (Lawyers Weekly
No.10-177-05) (30 pages) (Ireland,J.) (Sosman,
J., joined by Marshall, C.J., and Cordy, J., concurring)
(SJC) Appealed from a decision of the
Industrial Accidents Reviewing Board.Myles W.
McDonough and Mark H. Likoff for the insurer;
Michael C. Akashian for the employee; Timothy
Wilton submitted a brief for John Fleming,
et al., amici curiae; Karen S. Hambleton submitted
a brief for Massachusetts Academy of Trial
Attorneys, amicus curiae (Docket No. SJC-
09421) (Nov. 23, 2004).
Jurisdiction -
Suit under G.L.c. 93A
Where plaintiffs initiated suit under G.L.c.
93A,claiming alleged violations of G.L.c.176D
by the defendants in their handling of the
plaintiffs’ claims for workers’ compensation
benefits,a Superior Court judge acted correctly
in dismissing the suit due to a lack of subject
matter jurisdiction.
Fleming,et al.v.National Union Fire Insurance
Company,et al.(Lawyers Weekly No.10-176-05)
(15 pages) (Spina,J.) (SJC) Case heard by Troy,J.,
on a motion to dismiss. Timothy Wilton for the
plaintiffs;Myles W.McDonough for the defendants
(Docket No. SJC-09415) (Nov. 23, 2005).
Zoning
Standing - Diminution in value
Where the Appeals Court concluded that
the plaintiff abutters had standing to challenge
the issuance of a comprehensive permit for the
construction of affordable housing, this was
error,as the diminution of the plaintiffs’property
values is insufficient to establish standing
under G.L.c. 40B.
Standerwick,et al.v.Zoning Board of Appeals of
Andover,et al.(Lawyers Weekly No.10-099-06) (26
pages) (Marshall,C.J.) (SJC) Case heard by Whitehead,J.,on
a motion for summary judgment.Kevin
P. O’Flaherty for Avalon at St. Clare, Inc.; Andrew
A.Caffrey Jr.for the plaintiffs;Thomas J.Urbelis,for
Zoning Board of Appeals of Andover, was present
but did not argue;the following submitted briefs for
amici curiae: Michael Pill,pro se; R.Jeffrey Lyman,
Michael K. Murray and Adam Hollingsworth for
Greater Boston Real Estate Board and others (Docket
No. SJC-09635) (June 16, 2006).