Commonwealth v. Lessieur (Lawyers Weekly No. 10-129-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-10784 COMMONWEALTH vs. SHAWN LESSIEUR. Middlesex. April 10, 2015. – July 27, 2015. Present: Gants, C.J., Botsford, Duffly, Lenk, & Hines, JJ. Homicide. Evidence, Prior consistent statement, Impeachment of credibility, Corroborative evidence, Exculpatory. Witness, Impeachment, Corroboration. Practice, Criminal, Capital case, Assistance of counsel, Argument by prosecutor. Indictments found and returned in the Superior Court Department on May 8, 2008. The cases were tried before S. Jane Haggerty, J., and a motion for a new trial, filed on May 2, 2011, was heard by her. Leslie W. O’Brien for the defendant. Crystal Lee Lyons, Assistant District Attorney, for the Commonwealth. HINES, J. On March 17, 1994, Mark Jones was shot twice in the head and died from his injuries. In April, 2006, Nolyn Surprenant (Surprenant) implicated himself and the defendant in the murder. Surprenant was indicted for murder two months later. In March, 2007, Surprenant made an agreement with the Commonwealth to testify against the defendant in exchange for a recommendation of five years in State prison on a manslaughter charge. The defendant was subsequently indicted and, following a jury trial in the Superior Court, was convicted in October, 2009, of murder in the first degree on the theory of deliberate premeditation and also of unlawful possession of a firearm.[1] On May 2, 2011, the defendant filed a motion for a new trial under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), which was denied. The appeal from the denial of the motion was consolidated with the defendant’s direct appeal. Represented by new counsel on appeal, the defendant challenges: (1) the admission of multiple prior consistent statements; (2) the effectiveness of trial counsel in failing to object to the admission of certain evidence and failing to impeach a witness; (3) the prosecutor’s closing argument; and (4) the viability of the conviction based on uncorroborated testimony and newly discovered evidence. We affirm the defendant’s convictions and the denial of his motion for a new trial, and discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E. Background. We recite the facts the jury could have found based on the Commonwealth’s case. The defendant and Surprenant first met in 1989, when the defendant moved into the foster home where Surprenant, then fourteen […]
Commonwealth v. Brewer (Lawyers Weekly No. 10-128-15)
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-11819 COMMONWEALTH vs. ANDRE R. BREWER. Plymouth. April 6, 2015. – July 24, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Homicide. Firearms. Witness, Immunity, Self-incrimination. Constitutional Law, Privileges and immunities, Self-incrimination, Fair trial. Due Process of Law, Fair trial. Fair Trial. Practice, Criminal, Immunity from prosecution, Fair trial, Argument by prosecutor. Indictments found and returned in the Superior Court Department on June 3, 2011. The cases were tried before Richard J. Chin, J. The Supreme Judicial Court granted an application for direct appellate review. Leslie W. O’Brien for the defendant. Robert C. Thompson, Assistant District Attorney, for the Commonwealth. Anthony C. Biagioli, of the District of Columbia, & Kirsten V. Mayer & Chauncey B. Wood, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. HINES, J. Based on a shooting that occurred after a party ended in Brockton in 2007, a jury, in March, 2014, convicted the defendant of murder in the second degree, unlawful possession of a firearm, unlawful possession of a loaded firearm, and unlawful possession of ammunition. Represented by new counsel on appeal, the defendant argues (1) that the denial of immunity to two defense witnesses violated his right to a fair trial and due process of law, as well as his right to present a complete defense; and (2) error in the prosecutor’s closing argument. We affirm the defendant’s convictions. Background. We recite the facts the jury could have found based on the Commonwealth’s case, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), reserving certain details for our discussion of the specific issues raised. The victim, Jose Gurley, who was seventeen years of age, was shot sometime around 3 A.M. on July 21, 2007, on a street outside a vacant home in Brockton where he had just attended a party.[1] He did not appear to be the intended victim of the shooting. Rather, when gunshots erupted, the victim was speaking with one of the young men, Tyson Muzzy, with whom he had gone to the party. The victim, Muzzy, Dina Willis, Markeen Starks, and Jamar Martin earlier had traveled to the party together from Martin’s home. Before that, the victim had visited with his good friend Kashin Nembhard and David Stewart. Over […]
Commonwealth v. Melo (Lawyers Weekly No. 10-127-15)
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-11513 COMMONWEALTH vs. NELSON MELO. Bristol. February 6, 2015. – July 23, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ. Homicide. Felony-Murder Rule. Evidence, Admissions and confessions, Voluntariness of statement. Practice, Criminal, Capital case, Admissions and confessions, Voluntariness of statement, Assistance of counsel, Waiver. Constitutional Law, Admissions and confessions, Waiver of constitutional rights, Arrest, Probable cause, Assistance of counsel. Arrest. Telephone. Search and Seizure, Arrest, Probable cause, Fruits of illegal arrest. Probable Cause. Attorney at Law, Withdrawal. Indictment found and returned in the Superior Court Department on February 9, 2010. A pretrial motion to suppress evidence was heard by E. Susan Garsh, J., and the case was tried before Robert J. Kane, J. Jeanne M. Kempthorne for the defendant. Mary O’Neil, Assistant District Attorney, for the Commonwealth. HINES, J. On November 3, 2009, Chad Fleming (victim) was killed during a robbery (or attempted robbery) of drugs that he had planned to sell to the defendant, Nelson Melo. The defendant and Aaron Morin were charged with murder in the first degree in the death of the victim. The Commonwealth contended that the defendant acted as a joint venturer with Morin, who was tried separately. In November, 2012, a jury convicted the defendant of murder in the first degree on the theory of felony-murder.[1],[2] Represented by new counsel on appeal, the defendant argues (1) error in the partial denial of his motion to suppress statements he made to police; (2) error in the denial of defense counsel’s motion to withdraw from the case two days before trial; and (3) ineffective assistance of trial counsel. We conclude that the defendant’s motion to suppress statements made after being taken involuntarily to the police station should have been allowed in its entirety because these statements were the inadmissible fruits of an unlawful arrest. Because the defendant did not seek suppression on this ground, however, we review to determine if the error created a substantial likelihood of a miscarriage of justice, and conclude that it did not. We reject as well the other claims of error and, therefore, affirm the order denying defense counsel’s motion to withdraw and affirm the defendant’s conviction. Background. We recite the facts the jury could have found. The victim, who was twenty-five years of age, lived in Florida […]
Cantell, et al. v. Commissioner of Correction, et al. (Lawyers Weekly No. 11-078-15)
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-1858 Appeals Court ROBERT CANTELL & others[1] vs. COMMISSIONER OF CORRECTION & others.[2] No. 13-P-1858. Suffolk. December 12, 2014. – July 22, 2015. Present: Rubin, Milkey, & Carhart, JJ. Moot Question. Practice, Civil, Moot case, Dismissal of appeal, Class action. Commissioner of Correction. Administrative Law, Regulations. Imprisonment, Segregated confinement. Due Process of Law, Prison classification proceedings. Civil action commenced in the Superior Court Department on January 20, 2012. Motions to dismiss and for class certification were heard by Elizabeth M. Fahey, J. Bonita Tenneriello for the plaintiffs. Sheryl F. Grant for the defendants. MILKEY, J. The plaintiffs are inmates at various State prison facilities who for a time had been held in segregated confinement in so-called “special management units” (SMUs).[3] They brought this action seeking declaratory and injunctive relief against the Commissioner and other officials of the Department of Correction (collectively, the DOC). The plaintiffs’ amended complaint alleged that they, and other inmates similarly situated, cannot be segregated in SMUs without being afforded certain substantive and procedural protections. Their claims were identical to ones raised by the inmate in LaChance v. Commissioner of Correction, 463 Mass. 767, 774-777 (2012).[4] Thus, for example, like that inmate, the plaintiffs claimed inter alia that the conditions they faced in the SMUs were as onerous as those faced in so-called “departmental segregation units” (DSUs),[5] and that therefore the DOC was bound to extend to them the benefit of existing regulations governing confinement in the DSUs. Once the Supreme Judicial Court issued its opinion in LaChance, a Superior Court judge dismissed this action without prejudice to the plaintiffs’ filing a new complaint alleging “that [the] DOC is failing to properly comply with LaChance.”[6] For the reasons set forth below, we dismiss this appeal from the judgment as moot. Framing the mootness question. As an initial matter, we note that it is uncontested that the plaintiffs are no longer held in segregated confinement in SMUs.[7] Accordingly, to the extent that their case seeks to assert their own rights, it is moot. See Littles v. Commissioner of Correction, 444 Mass. 871, 872 n.3 (2005). However, a moot case nevertheless can be heard if it presents an issue “of public importance, capable of repetition, yet evading review.” Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 274 (1978).[8] As […]
Categories: News Tags: 1107815, Cantell, Commissioner, Correction, Lawyers, Weekly
Commonwealth v. Lima (Lawyer Weekly No. 11-077-15)
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-1746 Appeals Court COMMONWEALTH vs. VIRGEN MILLIE LIMA. No. 13-P-1746. Suffolk. November 13, 2014. – July 22, 2015. Present: Cypher, Fecteau, & Massing, JJ. Motor Vehicle, Insurance. Insurance, Motor vehicle insurance, Defrauding insurer. Fraud. Larceny. False Pretenses. Practice, Criminal, Required finding. Indictments found and returned in the Superior Court Department on March 11, 2010. The cases were tried before Regina L. Quinlan, J. Charles Allan Hope for the defendant. Christopher Hurld, Assistant Attorney General, for the Commonwealth. CYPHER, J. The defendant, Virgen Millie Lima, appeals from convictions by a Superior Court jury of two counts of motor vehicle insurance fraud under G. L. c. 266, § 111B, and two counts of larceny under G. L. c. 266, § 30.[1] The defendant argues that there was insufficient evidence of intent to defraud and that she did not commit larceny by false pretenses, because there was no property stolen from Safety Insurance Company (Safety Insurance). We affirm. Background. The charges against the defendant arose from an investigation by the Massachusetts Insurance Fraud Bureau (IFB), which was prompted by two referrals from Safety Insurance involving the same car dealership and the same insurance agency. The investigation began in 2008 while the defendant was employed as a licensed insurance agent by Brighton Insurance Agency in Brighton (Brighton Insurance). Following the IFB investigation, in which the investigator discovered a pattern of commercial vehicle policies involving undocumented drivers, a report of the findings was submitted to the office of the Attorney General. After review, that office sought indictments from a grand jury that charged the defendant with fraudulent statements or representations in three applications for commercial automobile insurance, prepared by the defendant and submitted by Brighton Insurance to Safety Insurance. The defendant also was charged with larceny in respect to those policies.[2] Facts. A significant portion of Brighton Insurance’s business involved serving a large influx of Brazilian immigrants, many of whom had Brazilian driver’s licenses. Brighton Insurance actively sought their business by advertising that it had staff fluent in Spanish and Portuguese, including the defendant. Similarly, many customers of an automobile agency, Inman Motors in Somerville, were Brazilian, and were referred to Brighton Insurance for their insurance needs. They were assisted in making that connection through the efforts of Wanderson Silva, one of Inman’s employees. Gordon Owades, the majority partner in Brighton Insurance, testified […]
Neuwirth, et al. v. Neuwirth (Lawyers Weekly No. 11-076-15)
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 14-P-900 Appeals Court LAURISA C. NEUWIRTH & another[1] vs. DONALD NEUWIRTH. No. 14-P-900. Middlesex. April 9, 2015. – July 22, 2015. Present: Grainger, Rubin, & Blake, JJ. Attorney at Law, Lien. Lien. Judgment. Jurisdiction, Superior Court. Superior Court, Jurisdiction. Complaint for divorce filed in the Middlesex Division of the Probate and Family Court Department on May 5, 2009. A motion to enforce an attorney’s lien was heard by Dorothy M. Gibson, J., and the entry of a supplemental judgment of divorce nisi was directed by her. Peter H. Rosenthal for the defendant. Brad W. Greenberg for Smyth Law Offices, P.C. GRAINGER, J. The defendant husband appeals from an order incorporated in a supplemental judgement of divorce nisi enforcing an attorney’s lien on real property received by the husband in the divorce judgment. General Laws c. 221, § 50, states, in relevant part: “From the authorized commencement of an action, counterclaim or other proceeding in any court . . . the attorney who appears for a client in such proceeding shall have a lien for his reasonable fees and expenses upon his client’s cause of action, counterclaim or claim, upon the judgment, decree or other order in his client’s favor entered or made in such proceeding, and upon the proceeds derived therefrom. Upon the request of the client or of the attorney, the court in which the proceeding is pending or, if the proceeding is not pending in a court, the superior court may determine and enforce the lien” (emphasis added). While the action was pending, the plaintiff, Smyth Law Offices, P.C., filed motions to enable collection of attorney’s fees, including a “first amended motion for att[orne]ys lien” entered on the docket September 29, 2011. The judgment of divorce is dated November 11, 2011, and was entered on the docket November 29, 2011. Thereafter, on February 1, 2012, the plaintiff’s attorney filed a motion to enforce the attorney’s lien. On February 9 the docket reflects the entry of a “[s]upplemental [j]udgment of [d]ivorce [n]isi dated 2/1/2012 as of 11/10/2011.” We are thus called upon to determine whether the “motion to enforce attorney’s lien” could properly be considered by the Probate Court under this sequence of events. We conclude that it cannot. While we are not unsympathetic to the effort made to dispose of an issue that […]
Commonwealth v. Traylor (Lawyers Weekly No. 10-126-15)
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-11788 COMMONWEALTH vs. MATTHEW TRAYLOR. Suffolk. February 3, 2015. – July 22, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Child Abuse. Assault and Battery. Reckless Endangerment of a Child. Constitutional Law, Double jeopardy. Practice, Criminal, Double jeopardy. Indictments found and returned in the Superior Court Department on September 12, 2008. The cases were tried before Elizabeth M. Fahey, J., and a motion to stay execution of sentence was heard in the Appeals Court by Francis R. Fecteau, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. David Hirsch for the defendant. Kevin J. Curtin, Assistant District Attorney (Elizabeth A. Dunigan, Assistant District Attorney with him) for the Commonwealth. LENK, J. After trial by jury, the defendant was convicted in the Superior Court of seven indictments charging offenses under G. L. c. 265, § 13J (b). That statute, in relevant part, imposes criminal penalties on a person who, “having care and custody of a child, wantonly or recklessly permits bodily injury [or substantial bodily injury] to such child or wantonly or recklessly permits another to commit an assault and battery upon such child, which assault and battery causes bodily injury [or substantial bodily injury].” Id. The seven separate indictments did not allege seven different instances on which the defendant wantonly or recklessly permitted bodily injury to a child, or seven different victims who were harmed as a result of the defendant’s conduct. Instead, the seven different indictments were each based on a distinct injury or set of injuries to the victim, Rory,[1] the defendant’s son, who was then approximately four months old. The defendant appealed, contending, inter alia, that the indictments were duplicative. Commonwealth v. Traylor, 86 Mass. App. Ct. 84, 86 (2014). The Appeals Court affirmed, id., and we granted the defendant’s application for further appellate review. We hold that, to establish multiple violations of G. L. c. 265, § 13J (b), the Commonwealth must prove either that the defendant engaged in separate and discrete instances of criminal conduct, or that multiple victims were harmed as a result of the defendant’s criminal conduct. The Commonwealth may not establish multiple convictions solely by showing multiple injuries to a single child. Accordingly, we reverse all but one of the defendant’s convictions. 1. […]
Commonwealth v. Carney (Lawyers Weekly No. 10-125-15)
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-11092 COMMONWEALTH vs. AARON CARNEY. Bristol. May 5, 2015. – July 20, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Homicide. Evidence, Photograph, Relevancy and materiality, Firearm. Practice, Criminal, Capital case, Argument by prosecutor. Indictment found and returned in the Superior Court Department on December 11, 2009. The case was tried before Robert J. Kane, J. Alan Jay Black for the defendant. Tara L. Blackman, Assistant District Attorney, for the Commonwealth. SPINA, J. The defendant was convicted of deliberately premeditated murder. On appeal he asserts error in the admission in evidence of (1) an autopsy photograph, and (2) a BB rifle together with ammunition that were unrelated to the killing. He also argues that the prosecutor’s closing argument was improper. We affirm the conviction and decline the defendant’s request for relief under G. L. c. 278, § 33E. 1. Background. The jury could have found the following facts. We reserve other details for discussion of particular issues. The defendant and Kenneth Fontaine became friends at sometime around 2005. Kenneth lived with his mother, Elizabeth Fontaine, the victim. Elizabeth was a registered nurse. She had significant issues with her health, including obesity. Kenneth assisted his mother with some of her needs. Kenneth and his mother purchased a single-family house in Attleboro during 2007. Because of her health and limited mobility, Elizabeth converted the first-floor living room into her bedroom. They took in boarders to help with their finances. The defendant was one such boarder. His rent was $ 400 per month. Kenneth and the boarders had bedrooms on the second and third floors. There also was a bedroom on the third floor that the boarders used for storage. Kenneth did not use that room. During 2008, some of Elizabeth’s medication began to disappear. Kenneth and Elizabeth believed it was taken by one of the other boarders, so they evicted him. Kenneth also discovered that an old shotgun he had kept in his closet was missing. He assumed it had been stolen by the same boarder who he thought had taken his mother’s medication. Kenneth had discussed these losses with the defendant, but he did not suspect the defendant of taking them. At one point, the defendant’s employment situation changed and he fell behind […]
Rodriguez v. City of Somerville (Lawyers Weekly No. 10-124-15)
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-11767 EDGAR RODRIGUEZ[1] vs. CITY OF SOMERVILLE. July 20, 2015. Massachusetts Tort Claims Act. Moot Question. Practice, Civil, Moot case, Presentment of claim under Massachusetts Tort Claims Act, Interlocutory appeal. Governmental Immunity. Municipal Corporations, Governmental immunity, Liability for tort. Notice, Claim under Massachusetts Tort Claims Act. After the plaintiff, Edgar Rodriguez acting on behalf of his minor son Rodrigo, commenced this negligence action against the city of Somerville (city), the city filed a motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), claiming that the plaintiff failed to meet the presentment requirements set forth in the Massachusetts Tort Claims Act (Act). See G. L. c. 258, § 4. A judge in the Superior Court denied the motion, concluding that the letter satisfied the statutory requirements. The city appealed, and in doing so argued that the appeal, which was interlocutory, was proper pursuant to the doctrine of present execution. The Appeals Court concluded that the doctrine of present execution does not apply and dismissed the appeal. See Rodriguez v. Somerville, 86 Mass. App. Ct. 1 (2014). The case is now before this court on further appellate review. Background. The essential background, as set forth in the Appeals Court’s decision, is as follows: “On April 14, 2011, Rodrigo Rodriguez, a second grade student at the Argenziano School in [the city], was injured when a metal door frame fell off the front door of the school and struck him in the head. On May 11, 2011, an attorney representing the minor and his parent and next friend, Edgar Rodriguez, sent a letter to the mayor of [the city].” Id. at 2. The plaintiff maintains that the letter was meant to satisfy the presentment requirements of G. L. c. 258, § 4, and in his complaint filed on March 29, 2013, alleged that “[t]imely and proper presentment was made to [the city] pursuant to [G. L. c. 258, § 4].”[2] Discussion. 1. Mootness. We address, as an initial matter, the plaintiff’s motion to dismiss the city’s appeal to this court as moot. He argues that the presentment question is moot because the original pleadings in the case have been superseded by subsequent pleadings, filed while this appeal has been pending. Among other things, the plaintiff has filed an amended complaint; the city has, in turn, filed an amended answer; and additional […]
Groton-Dunstable Regional School Committee v. Groton-Dunstable Educators Association (Lawyers Weekly No. 11-075-15)
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 14-P-701 Appeals Court GROTON-DUNSTABLE REGIONAL SCHOOL COMMITTEE vs. GROTON-DUNSTABLE EDUCATORS ASSOCIATION. No. 14-P-701. Middlesex. March 9, 2015. – July 20, 2015. Present: Trainor, Wolohojian, & Carhart, JJ. School and School Committee, Professional teacher status, Termination of employment. Education Reform Act. Arbitration, Collective bargaining, School committee. Public Employment, Collective bargaining, Termination. Civil action commenced in the Superior Court Department on November 4, 2013. The case was heard by Robert L. Ullmann, J., on a motion for judgment on the pleadings. Laurie R. Houle for the defendant. Howard L. Greenspan for the plaintiff. WOLOHOJIAN, J. At issue is whether the defendant union is entitled on behalf of a terminated teacher to pursue arbitration under the provisions of its collective bargaining agreement, or whether it is instead required to pursue arbitration under G. L. c. 71, § 42, amended by St. 1993, c. 71, § 44. Because we conclude that G. L. c. 71, § 42, provides the exclusive route to arbitrate the termination of a teacher with professional teacher status (previously known as tenure), we affirm the judgment resulting from the allowance of the plaintiff school committee’s motion for judgment on the pleadings. The school committee and the union entered into a collective bargaining agreement (CBA) that covered the period September 1, 2011, through August 31, 2014. One article of the CBA governed the arbitration of grievances, and set out detailed procedures for such arbitration. Another article of the CBA provided that teachers would not “be disciplined, reprimanded, reduced in rank or compensation, or deprived of any professional advantages or salary increase without just cause.” Melissa Pooler, a teacher with professional teacher status,[1] was terminated by the school committee on July 16, 2013. After the union’s grievance on behalf of Pooler was denied,[2] the union claimed arbitration under the CBA. The school committee responded by suing to stay arbitration pursuant to G. L. c. 150C, § 2. The school committee’s motion for a preliminary injunction was allowed, as was its subsequent motion for judgment on the pleadings. The latter is the subject of this appeal.[3] Section 42 of G. L. c. 71 provides, as pertinent here, that teachers with professional teacher status (such as Pooler) may seek to have an arbitrator review their termination in accordance with the procedures specified in the statute. Section 42 also provides that such a teacher “shall not be dismissed […]
Categories: News Tags: 1107515, Association, Committee, Educators, GrotonDunstable, Lawyers, regional, school, Weekly