Commonwealth v. Webb (Lawyers Weekly No. 10-074-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11291 COMMONWEALTH vs. DERREL C. WEBB. Plymouth. February 7, 2014. ‑ April 29, 2014. Present: Ireland, C.J., Spina, Botsford, Gants, & Lenk, JJ. Homicide. Firearms. Evidence, Bias, Credibility of witness. Witness, Bias, Credibility, Immunity. Practice, Criminal, Capital case, Agreement between prosecutor and witness, Promise by prosecutor, Immunity from prosecution, Argument by prosecutor, Instructions to jury. Indictments found and returned in the Superior Court Department on March 12, 2010. The cases were tried before Richard J. Chin, J. David Keighley for the defendant. Audrey Anderson, Assistant District Attorney, for the Commonwealth. IRELAND, C.J. On May 23, 2012, a jury convicted the defendant, Derrel C. Webb, of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty, and of unlawful possession of a firearm. Represented by new counsel on appeal, the defendant argues that a substantial likelihood of a miscarriage of justice arose both from the manner in which the judge admitted witness testimony given pursuant to grants of immunity and plea agreements, and from improper vouching by the prosecutor during her closing argument. We affirm the defendant’s convictions and discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E. 1. Background. Based on the Commonwealth’s evidence, the jury could have found the following facts. On July 28, 2008, at approximately 11:15 P.M., the victim and his older brother, Anthony, returned home to their apartment in Brockton. The boys went upstairs to the second floor. Shortly thereafter, their mother heard some “commotion” and ran upstairs. Anthony screamed that the victim had been shot. The victim’s mother found the victim lying on the floor. There was blood on the back of his head, and he was making gurgling sounds. She started cardiopulmonary resuscitation and told Anthony to telephone 911. Emergency medical technicians (EMTs) arrived and transported the victim to a nearby hospital. From there, he was transported by flight to a hospital in Boston where soon thereafter, in the early morning of July 29, he died as a result of a gunshot wound to the head, with skull perforation and brain penetration. The victim was fifteen years of age. Brockton police officers arrived at the victim’s home before the EMTs had left with him. In the room in which the victim […]
Mt. Ivy Press, L.P., et al. v. Defonseca (Lawyers Weekly No. 11-042-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑606 Appeals Court MT. IVY PRESS, L.P., & another[1] vs. MISHA DEFONSECA.[2] No. 13‑P‑606. Middlesex. January 10, 2014. ‑ April 29, 2014. Present: Kantrowitz, Vuono, & Sullivan, JJ. Judgment, Relief from judgment. Practice, Civil, Relief from judgment. Civil action commenced in the Superior Court Department on April 8, 2008. After review by this court, 78 Mass. App. Ct. 340 (2010), the case was heard by Thomas R. Murtagh, J., on a motion for summary judgment. Misha Defonseca, pro se. Brian S. McCormick for the plaintiffs. KANTROWITZ, J. This is the third, and hopefully the last, of a trilogy of cases that have played out before us.[3] Having twice before considered issues relating to the publication of the defendant’s memoir of survival during the Holocaust (the details of which have now been revealed as false), we are now asked to decide whether it was proper for the court below to vacate a substantial judgment against the plaintiffs. We conclude that it was. Facts. In 1995, Misha Defonseca entered into an agreement with plaintiff Jane Daniel and her company, Mt. Ivy Press, L.P. (Mt. Ivy), to publish a memoir of her experiences in Europe during the Holocaust. Entitled Misha: A Mémoire of the Holocaust Years, the work told the harrowing story of Defonseca’s survival as a young girl during the Holocaust “thanks to her strong will and guile as well as, incredibly, the aid of a pack of wolves, who ‘adopted’ and protected her, providing food, companionship, and affection.” The story even included her killing a Nazi soldier. Mt. Ivy I, 63 Mass. App. Ct. at 539. Since English was not Defonseca’s native language, she was paired with a ghostwriter, Vera Lee, to assist in the writing of the book. See id. at 540. Throughout the publication process, Mt. Ivy and its principal, Jane Daniel, engaged in many highly improper representations and activities which need not be detailed here. See Mt. Ivy I. Suffice it to say that the improprieties resulted in a jury verdict against Daniel and Mt. Ivy in favor of Defonseca in the amount of $ 7.5 million, and for Lee in the amount of $ 3.3 million. The trial judge found for Lee and Defonseca on their G. L. c. 93A claims, and trebled the damages, resulting in judgments […]
Irwin, et al. v. Degtiarov, et al. (Lawyers Weekly No. 11-041-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑450 Appeals Court JOHN IRWIN & another[1] vs. ARKADY DEGTIAROV & another.[2] No. 13‑P‑450. Middlesex. November 7, 2013. ‑ April 25, 2014. Present: Wolohojian, Agnes, & Sullivan, JJ. Dog. Animal. Damages, Tort. Practice, Civil, Damages. Veterinarian. Civil action commenced in the Newton Division of the District Court Department on December 18, 2008. The case was heard by Dyanne J. Klein, J. John G. Neylon for the defendants. Joseph I. Rogers for the plaintiffs. WOLOHOJIAN, J. An unprovoked attack by the defendants’ unleashed German shepherd caused the plaintiffs’ Bichon Frisé severe internal injuries, external bruising, and wounds to the head, neck, abdomen, and chest. Emergency surgery was successful but expensive, with veterinary costs ultimately amounting to over $ 8,000. After a bench trial, a District Court judge found those costs to be both reasonable and necessary and awarded them in full. The judgment was affirmed by the Appellate Division. The sole issue on appeal is whether damages should be capped at the market value of the dog, regardless of the reasonableness of the veterinary costs necessary to treat the dog’s injuries. We affirm. The plaintiffs sued under G. L. c. 140, § 155, as amended by St. 1934, c. 320, § 18, which since 1791 has imposed strict liability for damage caused by dogs: “If any dog shall do any damage to either the body or property of any person, the owner or keeper . . . shall be liable for such damage, unless such damage shall have been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog.” The statute has long been recognized to be remedial, not penal, “giving all the damages to the person injured.” Le Forest v. Tolman, 117 Mass. 109, 110 (1875), citing Mitchell v. Clapp, 12 Cush. 278 (1853). Its purpose “is to protect all persons, whatever may be their age or condition, who, through no fault of their own, are exposed to attacks from dogs, and to induce their owners and keepers to hold them under proper restraint and control.” Munn v. Reed, 4 Allen 431, 433 (1862). See Sherman v. Favour, 1 Allen 191, 192 (1861) (statute “was doubtless intended to provide a remedy co-extensive […]
Crown v. Kobrick Offshore Fund, Ltd., et al. (Lawyers Weekly No. 11-040-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑64 Appeals Court MARC CROWN, trustee,[1] vs. KOBRICK OFFSHORE FUND, LTD., & others.[2] No. 13‑P‑64. Suffolk. December 6, 2013. ‑ April 24, 2014. Present: Fecteau, Sullivan, & Maldonado, JJ. Uniform Securities Act. Securities, Sale. Consumer Protection Act, Securities transactions. Practice, Civil, Instructions to jury, Judgment notwithstanding verdict, Summary judgment, Attorney’s fees. Evidence, Impeachment of credibility, Cross‑examination, Expert opinion, Qualification of expert witness. Witness, Impeachment, Cross‑examination, Expert. Contract, Indemnity. Indemnity. Public Policy. Civil action commenced in the Superior Court Department on June 21, 2001. After review by the Supreme Judicial Court, 442 Mass. 43 (2004), a motion for summary judgment was heard by Ralph D. Gants, J.; the case was tried before Margaret R. Hinkle, J., and motions for judgment notwithstanding the verdict, for a new trial, and to alter or amend the findings were considered by her. Philip Y. Brown (Stacie A. Kosinski with him) for the plaintiff. Jeffrey S. Robbins for the defendants. FECTEAU, J. This cross appeal involves the plaintiff’s claim under the Massachusetts Uniform Securities Act (securities act) for misrepresentation, G. L. c. 110A, § 410(a)(2), tried to a jury, and a claim for unfair and deceptive trade practices, G. L. c. 93A, § 11, tried to a judge; both trials resulted in a judgment for the defendants. On appeal from the judgment and the denial of three posttrial motions, the plaintiff challenges a number of evidentiary rulings, the jury instructions, and the sufficiency of the evidence. In their cross appeal from the judgment, the defendants challenge the allowance of the plaintiff’s motion for summary judgment that dismissed their counterclaim for breach of contract. We discern no abuse of discretion or other error in the evidentiary rulings or jury instructions challenged by the plaintiff, and we see no merit in the plaintiff’s argument that the evidence was insufficient. As to the defendants’ claim on appeal, we conclude that summary judgment was properly entered because the ground for the defendants’ counterclaim is irreconcilable with the Supreme Judicial Court’s decision in a related case, Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 (2004) (Marram I). Accordingly, we affirm the judgment and the orders denying the plaintiff’s posttrial motions. Background. 1. Procedural history. This dispute arises from the plaintiff’s investment in the Kobrick Offshore Fund (fund), which […]
Silva v. Carmel (Lawyers Weekly No. 10-073-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11438 PATRICIA SILVA, guardian,[1] vs. NANCY CARMEL. Middlesex. February 6, 2014. ‑ April 18, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Abuse Prevention. Intellectually Disabled Person. Department of Developmental Services. Words, “Household members.” Complaint for protection from abuse filed in the Newton Division of the District Court Department on May 23, 2012. A hearing to extend the abuse prevention order was had before Dyanne J. Klein, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Frederick M. Misilo, Jr. (Marisa W. Higgins with him) for the defendant. Erin Jordan Harris for the plaintiff. The following submitted briefs for amici curiae: Joseph N. Schneiderman, of Connecticut, & Tara Hopper Zeltner for Association of Developmental Disabilities Providers & another. Donna Morelli, Christina L. Paradiso, Edward M. Ginsburg, & Nathan Morse for Community Legal Aid. IRELAND, C.J. The defendant appeals from an abuse prevention order issued against her pursuant to G. L. c. 209A by a District Court judge based on events that occurred in a residential program under the auspices of the Department of Developmental Services. Because we conclude that individuals who share a common diagnosis or status, rather than marriage, blood, or other relationships that are enumerated in G. L. c. 209A, § 1, and who live together in a State-licensed residential facility, do not qualify as “household members” within the meaning of G. L. c. 209A, § 1, we vacate the order against the defendant. Facts and procedure. The defendant and the victim are intellectually disabled adults who receive services from the Department of Developmental Services (department) in a residential program operated by a third party, Riverside Community Care, with funding from the department. Both individuals have legal guardians, family members in each case, who have been appointed by judges in the Probate and Family Court. The parties do not dispute the following facts that resulted in the complaint for an abuse prevention order: On May 22, 2012, the defendant went upstairs to the hallway outside the victim’s bedroom and, during an ensuing altercation, pushed the victim into the bathroom. As a result of being pushed, the victim suffered injuries to her head, neck, and back when she fell backward into a bathtub. The next day, the plaintiff filed her application for an […]
Commonwealth v. Nelson (Lawyers Weekly No. 10-072-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11337 COMMONWEALTH vs. LARRY NELSON. Suffolk. January 10, 2014. ‑ April 17, 2014. Present: Ireland, C.J., Cordy, Botsford, Gants, & Duffly, JJ. Homicide. Practice, Criminal, Capital case, Argument by prosecutor, Instructions to jury, Question by jury. Jury and Jurors. Indictment found and returned in the Superior Court Department on May 15, 2008. The case was tried before Judith Fabricant, J. Leslie W. O’Brien for the defendant. Teresa K. Anderson, Assistant District Attorney (Gretchen Lundgren, Assistant District Attorney, with her) for the Commonwealth. IRELAND, C.J. On January 26, 2010, a jury convicted the defendant, Larry Nelson, of murder in the first degree on the theory of extreme atrocity or cruelty. Represented by new counsel on appeal, the defendant argues error in the prosecutor’s closing argument and in the judge’s instructions to the jury. We affirm the defendant’s conviction and discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E. 1. Background. The jury could have found the following facts. On October 12, 2007, Boston police officers, responding to a telephone call made from a resident of the victim’s apartment building, discovered the victim’s body inside his apartment. The victim’s identity was not immediately ascertainable because his body was in a state of decomposition. The victim’s body was on the floor in the front hallway about five or six feet from the main entrance. He was on his left side with his head toward the front door. His shirt was soaked in blood. There was a pool of dried blood underneath him, gaping wounds to his neck and face, and reddish-brown stains on the walls of both sides of the hallway. Emergency medical technicians arrived and pronounced the victim dead. He was sixty-four years of age. The victim had a total of twenty stab and incised wounds. He had six wounds to his head and neck, seven wounds to his torso area, and seven wounds on his upper extremities. The victim died as result of stab wounds to the head, neck, torso, and upper extremities, with perforations of the lung and subclavian artery, and associated hemorrhage. The medical examiner who conducted his autopsy expressed her opinion that the victim died within minutes from when his wounds were inflicted. The victim and the defendant knew each other. They […]
Sullivan, et al. v. Kondaur Capital Corporation (Lawyers Weekly No. 11-039-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑706 Appeals Court JOSEPH L. SULLIVAN & another[1] vs. KONDAUR CAPITAL CORPORATION. No. 13‑P‑706. Suffolk. February 4, 2014. ‑ April 16, 2014. Present: Kafker, Green, & Sullivan, JJ. Mortgage, Assignment, Foreclosure. Practice, Civil, Motion to dismiss, Standing. Real Property, Mortgage, Registered land, Certificate of title. Assignment. Agency, Scope of authority or employment. Corporation, Officers and agents. Land Court. Civil action commenced in the Superior Court Department on March 8, 2010. After transfer to the Land Court Department, a motion to dismiss was heard by Harry M. Grossman, J. Rockwell P. Ludden for the plaintiffs. David M. Rosen for the defendant. GREEN, J. In this appeal, the plaintiffs, Joseph L. and Mary R. Sullivan (Sullivans), challenge the title of the defendant, Kondaur Capital Corporation (Kondaur), to the Sullivans’ former residence, based on their contention that Kondaur did not hold a valid interest in the mortgage it foreclosed on the property in October, 2009. A judge of the Land Court allowed Kondaur’s motion to dismiss the Sullivans’ amended verified complaint, and thereafter denied (on grounds of futility) the Sullivans’ motion to further amend their complaint. Though several of the Sullivans’ challenges are without merit, we conclude that the complaint sufficiently stated a claim that Kondaur’s title to the mortgage was defective at the time of the foreclosure, and reverse the judgment. Background. We draw the following factual background from the allegations in the Sullivans’ verified amended complaint. On or about August 16, 2004, the Sullivans acquired title to property located at 98 Wild Hunter Road in Dennis (property). The property is registered land, and upon registration of the deed conveying the property to them, certificate of title no. 174074 issued in their names, evidencing their title. On January 11, 2006, the Sullivans executed a mortgage (mortgage), conveying the property to Mortgage Electronic Registration Systems, Inc. (MERS), “solely as nominee for [WMC Mortgage Corp. (WMC)] and [WMC’s] successors and assigns,” to secure payment of a promissory note the Sullivans executed in favor of WMC. The mortgage thereafter was duly filed for registration with the Barnstable registry district of the Land Court. By instrument dated May 21, 2008 (first assignment), MERS purported to assign the mortgage to Saxon Mortgage Services, Inc. (Saxon). Thereafter, by instrument dated February 12, 2009 (second assignment), Saxon […]
Commonwealth v. Riley (Lawyers Weekly No. 10-071-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑10974 COMMONWEALTH vs. MICHAEL RILEY. Plymouth. December 6, 2013. ‑ April 15, 2014. Present: Spina, Cordy, Botsford, Gants, & Duffly, JJ. Homicide. Constitutional Law, Assistance of counsel. Due Process of Law, Assistance of counsel. Practice, Criminal, Capital case, Assistance of counsel, New trial, Required finding, Instructions to jury, Costs. Malice. Intent. Evidence, Intent, Scientific test, Prior misconduct, Relevancy and materiality. Indictment found and returned in the Superior Court Department on March 23, 2007. The case was tried before Charles J. Hely, J., and motions for authorization of funds and for a new trial were considered by him. Dennis Shedd for the defendant. Gail M. McKenna, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. In 2007, a Plymouth County grand jury returned indictments charging the defendant and his wife, Carolyn Riley,[1] with the murder of their four year old daughter, Rebecca. The defendant and Carolyn were tried separately in 2010. Carolyn was convicted of murder in the second degree; the defendant was convicted of murder in the first degree on a theory of extreme atrocity or cruelty. Before us is the defendant’s appeal from his conviction and from the denial of his motions for a new trial and for funds to retain a toxicologist. The defendant argues the following: (1) his trial counsel was ineffective in a number of respects; (2) his motion for a required finding of not guilty on the murder charge should have been allowed because there was insufficient evidence of malice; (3) the prosecutor improperly and excessively relied on evidence of the defendant’s bad character that was unfairly prejudicial; and (4) the judge abused his discretion in denying the defendant’s motion for a new trial without a hearing and the defendant’s related posttrial motion for funds to retain a toxicologist. Last, the defendant asks us to use our power under G. L. c. 278, § 33E, to reduce his conviction to involuntary manslaughter. We affirm the defendant’s judgment of conviction and the denial of his new trial motion and motion for funds, and we decline to reduce his conviction to a lesser degree of guilt. 1. Background. We summarize the facts as the jury could have found them, reserving certain details for our discussion of the issues raised. The defendant and Carolyn had three children: Gerard, […]
Commonwealth v. Elangwe (Lawyers Weekly No. 11-038-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 10‑P‑2190 Appeals Court COMMONWEALTH vs. MANFRED ELANGWE. No. 10‑P‑2190. Middlesex. September 11, 2013. ‑ April 15, 2014. Present: Kantrowitz, Sikora, & Hines, JJ. Rape. Assault and Battery. Practice, Criminal, New trial, Discovery, Assistance of counsel, Hearsay, Conduct of prosecutor. Constitutional Law, Assistance of counsel. Due Process of Law, Assistance of counsel. Evidence, Exculpatory, Hearsay, Relevancy and materiality, Cross‑examination, Credibility of witness, Impeachment of credibility. Witness, Credibility, Cross‑examination. Indictments found and returned in the Superior Court Department on May 26, 2005. The cases were tried before Sandra L. Hamlin, J., and a motion for a new trial, filed on May 18, 2011, was considered by her. Jane Larmon White, Committee for Public Counsel Services, for the defendant. Jessica Langsam, Assistant District Attorney, for the Commonwealth. HINES, J. After a jury trial in the Superior Court, the defendant, Manfred Elangwe, was convicted of rape (Mary Smith),[1] assault and battery as a lesser included offense (Susan Jones), and accosting and annoying a person of the opposite sex (Jones). This is a consolidated appeal from the convictions and the denial of the defendant’s motion for new trial. We affirm. Background. The jury reasonably could have found the following facts. The victims lived at the Hildebrand Family Self-Help Center, a shelter in Cambridge, during the summer of 2004. The shelter had one “house manager” on site at any one time. The defendant was a house manager during the victims’ stay. The defendant’s direct supervisor was Lorraine D’Eon, the director of program operations for the shelter. a. Smith. One day in July of 2004, after finishing her chores, Smith sat down on a sofa in the common area near where the defendant was sitting. The defendant was the only other person in the common area. The defendant suddenly approached Smith and forced her to have sexual intercourse with him on the sofa. After the defendant finished, he told Smith that no one would believe her because she was homeless. Smith discarded her clothes and did not photograph or document her injuries. Smith then went to the residence of her children’s father, Dan Emde. While there, she took a bath and used two douches that she purchased on the way. Although Smith sounded upset talking to Emde, she did not tell him about the […]
Fitchburg Gas and Electric Light Company, et al. v. Department of Public Utilities (Lawyers Weekly No. 10-068-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11397 FITCHBURG GAS AND ELECTRIC LIGHT COMPANY[1] & others[2] vs. DEPARTMENT OF PUBLIC UTILITIES. Suffolk. December 5, 2013. ‑ April 14, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Department of Public Utilities. Public Utilities, Electric company, Rate setting, Costs of service, Rate of return. Constitutional Law, Taking of property. Due Process of Law, Taking of property, Regulatory proceeding. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 17, 2012. The case was reported by Botsford, J. David S. Rosenzweig (Erika J. Hafner with him) for the plaintiffs. Pierce O. Cray, Assistant Attorney General (Rebecca Tepper with him) for the defendant. CORDY, J. This matter comes before us on a reservation and report, without decision, by a single justice of this court of an administrative appeal filed pursuant to G. L. c. 25, § 5. The petitioners, electric companies as defined by G. L. c. 164, § 1, within the jurisdiction of the Department of Public Utilities (department), appeal a final order of the department imposing on the petitioners monetary assessments for the Storm Trust Fund (assessment), pursuant to G. L. c. 25, §§ 12P, 18. In accordance with the language of the fourth sentence of G. L. c. 25, § 18, third par., the order specifically prohibited the petitioners from seeking recovery of the assessment in any rate proceeding. The petitioners claim that this prohibition on recovery, as required by the statute and imposed by the department’s order, is an unconstitutional taking in violation of art. 10 of the Massachusetts Declaration of Rights and the Fifth and Fourteenth Amendments to the United States Constitution. They seek a declaration that the recovery prohibition is unconstitutional, severance of the prohibition from the remainder of the statutory scheme, and reversal of the department’s order. The petitioners essentially assert three grounds on which the recovery prohibition constitutes a taking. First, they claim that the recovery prohibition, as it operates on the assessment, effects a per se taking without just compensation. We conclude that it does not, because a mere obligation to pay such an assessment, regardless of whether recovery is permitted or precluded, does not rise to the level of a compensable per se taking. Second, they assert that it constitutes a taking by way of a confiscatory rate because the recovery […]