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B12 | Massachusetts Lawyers Weekly | September 25, 2006 Subscribe Today - Call 1-800-451-9998 www.masslawyersweekly.com | Cite this page 35 MLW 284 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
Cite this page 35 MLW 285 | www.masslawyersweekly.com Subscribe Today - Call 1-800-451-9998 September 25, 2006 | Massachusetts Lawyers Weekly | B13 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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