Heyn v. Director of the Office of Medicaid (Lawyers Weekly No. 11-043-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 15-P-166 Appeals Court EILEEN M. HEYN, personal representative,1 vs. DIRECTOR OF THE OFFICE OF MEDICAID. No. 15-P-166. Worcester. February 5, 2016. – April 15, 2016. Present: Green, Hanlon, & Henry, JJ. Medicaid. Trust, Self-settled trust, Irrevocable trust, Distribution, Allocation of payments between principal and income, Power of appointment. Annuity. Civil action commenced in the Superior Court Department on December 12, 2013. The case was heard by William F. Sullivan, J., on a motion for judgment on the pleadings. Patrick Tinsley for the plaintiff. Daniel J. Hammond, Assistant Attorney General, for the defendant. Patricia Keane Martin, Robert P. Ford, Kathryn E. Szewczyk, & Don J.J. Cordell, for National Academy of Elder Law Attorneys (Massachusetts Chapter), amicus curiae, submitted a brief. GREEN, J. We are called upon yet again to review a determination that assets within a self-settled irrevocable 1 Of the estate of Everlenna Roche. 2 inter vivos trust should be treated as available to the trust grantor for payment of nursing home expenses (and, correspondingly, render the grantor ineligible for Medicaid benefits). We conclude that a hearing officer of the MassHealth board of hearings erroneously concluded that the trust at issue permitted its trustee to distribute proceeds from the sale of trust assets to the grantor in certain circumstances. Consequently, we reverse the judgment of the Superior Court affirming MassHealth’s termination of benefits to the plaintiff’s decedent.2 Background. From November 4, 2011, until her death on August 25, 2013, the plaintiff’s decedent, Everlenna Roche, resided at a skilled nursing facility in Westborough. Approximately eight and one-half years earlier, Roche had established the Everlenna R. Roche Irrevocable Trust (trust), and transferred to it title to her home at 10 Baker Way, Westborough, retaining a life estate.3 Upon moving into the 2 We acknowledge the amicus brief submitted by the National Academy of Elder Law Attorneys, Inc. (Massachusetts chapter). 3 The defendant makes no argument that the life estate retained by Roche might itself have a value that could affect her eligibility for benefits, stating in its brief that it is “a correct statement of the law under Cohen [v. Commissioner of the Div. of Med. Assistance, 423 Mass. 399 (1996), cert. denied sub nom. Kokoska, by Kokoska v. Bullen, 519 U.S. 1057 (1997),] and its progeny” that retention of a life estate does not render an individual ineligible for benefits. We do […]
Burbank Apartments Tenant Association, et al. v. Kargman, et al. (Lawyers Weekly No. 10-051-16)
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-11872 BURBANK APARTMENTS TENANT ASSOCIATION & others[1] vs. WILLIAM M. KARGMAN[2] & others.[3] Suffolk. December 8, 2015. – April 13, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Housing. Fair Housing Act. Anti-Discrimination Law, Housing. Civil action commenced in the Boston Division of the Housing Court Department on March 16, 2011. A motion to dismiss was heard by Jeffrey M. Winik, J. The Supreme Judicial Court granted an application for direct appellate review. Ann E. Jochnick (James M. McCreight with her) for the plaintiffs. Janet Steckel Lundberg for the defendants. The following submitted briefs for amici curiae: John Cann, of Minnesota, for Sargent Shriver National Center on Poverty Law & others. Harry J. Kelly & Joshua S. Barlow for Greater Boston Real Estate Board & others. Joseph D. Rich & Thomas Silverstein, of the District of Columbia, Oren M. Sellstrom, of California, & Laura Maslow-Armand for Lawyers’ Committee for Civil Rights Under Law & another. John J. McDermott, of Virginia, & Eleftherios Papadopoulos for National Apartment Association & another. Esme Caramello, Louis Fisher, Erika Johnson, Aditya Pai, & Katie Renzler for Fair Housing Center of Greater Boston & others. Roberta L. Rubin, Special Assistant Attorney General, for Department of Housing & Community Development. CORDY, J. This case arises out of a decision made by the defendants, the principals and owners of Burbank Apartments (Burbank), not to renew Burbank’s project-based Section 8 housing assistance payments contract (HAP) with the United States Department of Housing and Urban Development (HUD) when its forty-year mortgage subsidy contract expired on March 31, 2011. In lieu of those project-based subsidies, the defendants opted instead to accept from its tenants Section 8 enhanced vouchers, enabling tenants living in units subsidized on a project basis to remain as tenants under an alternative Federal housing program.[4] See 42 U.S.C. § 1437f (2012). The plaintiffs, comprised of current and potential Burbank tenants, complained that Burbank’s decision violated § 3604 of the Federal Fair Housing Act (FHA or Title VIII), 42 U.S.C. §§ 3601 et seq. (2012), and the Massachusetts antidiscrimination law, G. L. c. 151B, § 4, both by virtue of intentional discrimination as well as disparate impact on members of otherwise protected classes of citizens. In particular, the plaintiffs alleged that the defendants’ decision not to renew their HAP […]
Categories: News Tags: 1005116, Apartments, Association, Burbank, Kargman, Lawyers, Tenant, Weekly
Landry v. Massachusetts Port Authority, et al. (Lawyers Weekly No. 11-042-16)
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 15-P-253 Appeals Court DONALD R. LANDRY vs. MASSACHUSETTS PORT AUTHORITY & another.[1] No. 15-P-253. Hampden. November 12, 2015. – April 12, 2016. Present: Cohen, Grainger, & Wolohojian, JJ. Massachusetts Port Authority. Municipal Corporations, Liability for tort. Practice, Civil, Summary judgment, Interlocutory appeal, Execution. Negligence, Use of way. Way, Public: defect. Notice, Action alleging injury caused by defect in public way. Civil action commenced in the Superior Court Department on June 25, 2012. The case was heard by C. Jeffrey Kinder, J., on motions for summary judgment. Tara E. Lynch for the defendants. Enrico M. De Maio for the plaintiff. COHEN, J. The plaintiff, Donald R. Landry, brought this negligence action pursuant to the Massachusetts Tort Claims Act, G. L. c. 258, seeking damages from the defendants, the Massachusetts Port Authority (Massport) and the city of Worcester (city), for injuries he sustained at the Worcester Regional Airport (airport) when a motorized sliding gate pinned him to a metal bar protruding from the gate post. The defendants jointly moved for summary judgment, claiming that Landry was injured by reason of a defect in a way and, hence, his exclusive remedy was an action under G. L. c. 84, §§ 15, 18, and 19.[2] See Botello v. Massachusetts Port Authy., 47 Mass. App. Ct. 788, 789 & n.3 (1999). Because it was undisputed that Landry had not given notice within thirty days of his injury, as required by c. 84, § 18,[3] the defendants argued that they were entitled to judgment as matter of law. The city also argued that it was entitled to summary judgment for the independent reason that it was not responsible for “the way at issue.” A judge of the Superior Court denied summary judgment, concluding that the defendants had failed to establish that the site of the accident was a “way,”[4] and that there remained a genuine issue of material fact as to the city’s responsibility for the maintenance and operation of the gate. The defendants then jointly filed a notice of appeal from this interlocutory order, claiming entitlement to immediate review under the doctrine of present execution. Although we conclude that the appeal is not properly before us and must be dismissed, we exercise our discretion to consider the defendants’ substantive arguments, which we find to be without merit. Background. Viewing the evidence in the summary […]
Commonwealth v. Cassino (Lawyers Weekly No. 10-050-16)
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-11684 COMMONWEALTH vs. ADAM CASSINO. Suffolk. December 11, 2015. – April 8, 2016. Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ. Homicide. Search and Seizure, Clothing, Warrant, Probable cause. Constitutional Law, Search and seizure, Probable cause. Probable Cause. Deoxyribonucleic Acid. Mental Impairment. Jury and Jurors. Practice, Criminal, Capital case, Motion to suppress, Instructions to jury, Voir dire, Jury and jurors. Indictment found and returned in the Superior Court Department on November 15, 2011. Pretrial motions to suppress evidence were heard by Charles J. Hely, J., and the case was tried before Garry V. Inge, J. Azi Safar for the defendant. Zachary Hillman, Assistant District Attorney (Ian Polumbaum, Assistant District Attorney, with him) for the Commonwealth. HINES, J. In August, 2011, a sixty-five year old woman was found dead in her apartment in the South Boston section of Boston. She was the victim of blunt force trauma caused by a baseball bat. The defendant, Adam Cassino, was indicted for the crime and a jury convicted him of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty. On appeal, the defendant claims (1) error in the denial of his three motions to suppress evidence stemming from a claimed illegal search of his clothing and shoes that were stored in a secured area while he was civilly committed pursuant to G. L. c. 123, § 35; (2) error in the presentation of deoxyribonucleic acid (DNA) results; (3) error in the failure to give a diminished capacity instruction; and (4) abuse of discretion in the judge’s juror bias determination. We affirm the order denying the defendant’s motions to suppress as well as the defendant’s convictions, and we discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E. 1. Motion to suppress. a. Background. After the discovery of the victim’s body on August 27, 2011, the police investigation soon focused on the defendant, the victim’s neighbor, as a possible suspect. The investigation led police to the Massachusetts Alcohol and Substance Abuse Center (center) where the defendant had resided since August 24, 2011, after being civilly committed for drug treatment under G. L. c. 123, § 35. On August 29, 2011, two days after the discovery of the body, two Boston police detectives went to the center to interview […]
Duffy v. Amica Mutual Insurance Co. (Lawyers Weekly No. 11-041-16)
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-1707 Appeals Court JOHN DUFFY, D.C. vs. AMICA MUTUAL INSURANCE CO. No. 14-P-1707. Middlesex. January 11, 2016. – April 8, 2016. Present: Katzmann, Milkey, & Hanlon, JJ. Insurance, Motor vehicle personal injury protection benefits, Coordination-of-benefits clause, Unfair act or practice. Contract, Insurance, Coordination of benefits clause. Consumer Protection Act, Insurance. Civil action commenced in the Lowell Division of the District Court Department on May 14, 2010. The case was heard by J. Elizabeth Cremens, J., on motions for summary judgment. Francis A. Gaimari for the plaintiff. Charles G. Devine, Jr. for the defendant. KATZMANN, J. This appeal presents the principal question whether summary judgment was appropriately allowed against a health care provider which, though having failed to coordinate benefits between the insured’s auto insurer and the insured’s health insurer, claimed entitlement to unpaid Personal Injury Protection (PIP) benefits under the compulsory motor vehicle liability insurance scheme contained in G. L. c. 90, §§ 34A-34Q.[1] The plaintiff, John Duffy, D.C., a corporation providing chiropractic services (we refer to the corporation and the individual as Duffy),[2] appeals from a decision and order of the Appellate Division of the District Court affirming a summary judgment granted by a District Court judge to the defendant, auto insurer Amica Mutual Insurance Company (Amica), on Duffy’s action for recovery of $ 394.44 in PIP benefits. Duffy had treated Amica’s insured, Sandra Cormier, and he alleges that the PIP benefits were due him as an unpaid party pursuant to G. L. c. 90, § 34M.[3] He also claims that he was entitled to recover damages and attorney’s fees and costs pursuant to G. L. c. 90, § 34M, and G. L. c. 93A, § 11.[4] We affirm. Discussion. “We review the disposition of a motion for summary judgment de novo . . . to determine whether all material facts have been established such that the moving party is entitled to judgment as a matter of law[;] . . . [w]e construe all facts in favor of the nonmoving party, . . . and we may consider any grounds that support the motion judge’s ruling.” American Intl. Ins. Co. v. Robert Seuffer GmbH & Co. KG., 468 Mass. 109, 113, cert. denied, 135 S. Ct. 871 (2014) (quotations and citations omitted). The essence of the parties’ dispute is the question whether Amica’s obligation to pay unpaid portions of Duffy’s bills was ever triggered. Amica initially denied all […]
Chiaraluce v. Zoning Board of Wareham (and a consolidated case) (Lawyers Weekly No. 11-040-16)
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 15-P-328 Appeals Court JOSEPH H. CHIARALUCE, trustee,[1] vs. ZONING BOARD OF APPEALS OF WAREHAM (and a consolidated case[2]). No. 15-P-328. Suffolk. January 7, 2016. – April 8, 2016. Present: Hanlon, Sullivan, & Maldonado, JJ. Zoning, Nonconforming use or structure, By-law. Civil actions commenced in the Land Court Department on July 21 and July 25, 2011. The cases were heard by Gordon H. Piper, J. Richard M. Serkey for Joseph H. Chiaraluce. Mark J. Lanza for Denise R. DePedro. SULLIVAN, J. Joseph H. Chiaraluce, trustee of the Chiaraluce Realty Trust (trust), appeals from a judgment of the Land Court in a consolidated action, which determined that the trust was not entitled to a building permit for its Wareham lot (locus). A judge of the Land Court concluded that the right to rebuild the nonconforming residential structure that once occupied the lot had been abandoned as a matter of law. We affirm. Background. We accept the facts as found by the trial judge, unless they are clearly erroneous, Colony of Wellfleet, Inc. v. Harris, 71 Mass. App. Ct. 522, 523 (2008), and “do not review questions of fact if any reasonable view of the evidence and the rational inferences to be drawn therefrom support the judge’s findings.” Martin v. Simmons Properties, LLC, 467 Mass. 1, 8 (2014). The locus, the subject of numerous efforts to build, is comprised of 7,012 square feet in a residential district that has a current minimum lot size requirement of 30,000 square feet. It has no street frontage and is accessible from the street over a twelve-foot-wide right of way. Olaf, Lorraine, and Laurence Olsen (the Olsens) purchased the locus in 1971 for $ 16,000, at which time it was improved with a residential cottage ten feet in height, twenty feet in length, and thirty feet in width, with a gross living area of 600 square feet. In August of 1991, Hurricane Bob damaged the cottage, forcing it off its cement block foundation and separating the porch from the cottage. Thereafter, in September, 1991, the Olsens dismantled and removed the cottage from the locus. Wareham’s zoning board of appeals (ZBA or board) granted a “blanket” special permit for reconstruction of residences damaged by Hurricane Bob. Although the Olsens obtained such a permit in March of 1992 […]
Categories: News Tags: 1104016, Board, case, Chiaraluce, consolidated, Lawyers, Wareham, Weekly, Zoning
Commonwealth v. Boyd (Lawyers Weekly No. 10-049-16)
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-11998 COMMONWEALTH vs. MICHAEL S. BOYD. Middlesex. January 11, 2016. – April 8, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Firearms. Practice, Criminal, Sentence, Nolle prosequi. Indictments found and returned in the Superior Court Department on October 28, 2008. The cases were tried before Sandra L. Hamlin, J., and a motion to correct sentence, filed on May 4, 2014, was heard by her. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. James M. Fox for the defendant. KerryAnne Kilcoyne, Assistant District Attorney, for the Commonwealth. Chauncey B. Wood & Timothy St. Lawrence, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. CORDY, J. The defendant, Michael Boyd, was convicted on counts of an indictment charging two sentencing enhancements, one as a second-time offender, see G. L. c. 269, § 10 (d), and one under the Massachusetts armed career criminal (ACC) statute,[1] see G. L. c. 269, § 10G (c), both premised on an underlying conviction of unlawful possession of a sawed-off shotgun, in violation of G. L. c. 269, § 10 (c). The Commonwealth moved for sentencing consistent with the fifteen- to twenty-year term of imprisonment required by the ACC statute, while the defendant recommended a lesser punishment, also within the range afforded by the ACC statute.[2] See G. L. c. 269, § 10G (c). The defendant was sentenced to a term of from fifteen to seventeen years in State prison on the ACC enhancement and was not sentenced on the second offender enhancement. The defendant appealed from the ACC conviction, arguing that the Commonwealth’s evidence was insufficient to support a sentence enhancement under that provision. In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court agreed, reversing the conviction and remanding the case for resentencing. See Commonwealth v. Boyd, 85 Mass. App. Ct. 1106 (2014). The Appeals Court’s decision ostensibly left the defendant with convictions of unlawful possession of a sawed-off shotgun, which carries a sentencing range of from eighteen months to life, see G. L. c. 269, § 10 (a), (c); and the second offender enhancement conviction for the same offense, which carries a mandatory term of imprisonment in State prison of between five and seven years, see G. L. c. 269, § 10 (d). On remand, the case presented a unique circumstance: a statute that […]
Commonwealth v. Sylvia (Lawyers Weekly No. 11-039-16)
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-1804 Appeals Court COMMONWEALTH vs. GERALD SYLVIA. No. 13-P-1804. Middlesex. October 7, 2015. – April 6, 2016. Present: Katzmann, Rubin, & Wolohojian, JJ. Practice, Criminal, Plea, Sentence, Indictment. Armed Assault in a Dwelling. Indictments found and returned in the Superior Court Department on December 5, 2006. A motion for release from unlawful confinement was considered by Edward P. Leibensperger, J., and a motion to revise and revoke sentence was considered by Diane M. Kottmyer, J. Michael A. Cioffi for the defendant. Crystal Lee Lyons, Assistant District Attorney, for the Commonwealth. WOLOHOJIAN, J. The defendant pleaded guilty in 2007 to charges stemming from an incident in which he stole twenty pounds of marijuana at gunpoint. The plea was tendered without an agreed sentencing recommendation. In this consolidated appeal from the order denying his motions to be released from unlawful restraint and to revise and revoke his sentence, the defendant contends: (1) his plea was not knowing and voluntary because, in violation of Mass.R.Crim.P. 12(c)(2)(A), as appearing in 442 Mass. 1513 (2004),[1] he was not informed he could withdraw his plea if the sentence exceeded the Commonwealth’s sentencing recommendation, (2) his plea was not knowing and voluntary because he had a “plea agreement” with the previous judge sitting in the session and that agreement was “breached,” (3) his plea was not intelligently made because there was insufficient evidence before the grand jury to support the charge of armed assault in a dwelling, and (4) being an armed career criminal is not a freestanding crime and; therefore, it was error to impose a separate sentence for it. We agree with the defendant that there is no freestanding crime of being an armed career criminal and, therefore, a separate sentence should not have been imposed. We accordingly remand the matter to the Superior Court to implement the procedure followed in Commonwealth v. Miranda, 441 Mass. 783 (2004), and for resentencing on the firearm charge. We otherwise affirm. Background. The evidence before the grand jury showed the following. Anthony Theriault agreed to sell twenty pounds of marijuana to Jemail Morris. When Theriault arrived at the designated meeting spot, Morris was not alone. Instead, Morris was accompanied by the defendant, whom Morris introduced as supplying the purchase money. After overcoming his initial surprise and hesitation, Theriault agreed to […]
Commonwealth v. Mercado (Lawyers Weekly No. 10-048-16)
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-11964 COMMONWEALTH vs. MANUEL ANTONIO MERCADO. Suffolk. February 10, 2016. – April 6, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Controlled Substances. Alien. Constitutional Law, Plea, Assistance of counsel, Retroactivity of judicial holding. Due Process of Law, Plea, Assistance of counsel. Practice, Criminal, Plea, Assistance of counsel, Retroactivity of judicial holding. Complaint received and sworn to in the East Boston Division of the Boston Municipal Court Department on February 26, 1990. A motion for a new trial, filed on March 18, 2015, was heard by John E. McDonald, Jr., J. The Supreme Judicial Court granted an application for direct appellate review. Benjamin L. Falkner for the defendant. John P. Zanini, Assistant District Attorney, for the Commonwealth. Emma C. Winger, Jennifer Klein, & Wendy S. Wayne, Committee for Public Counsel Services, for Committee for Public Counsel Services & another, amici curiae, submitted a brief. CORDY, J. In Commonwealth v. Sylvain, 466 Mass. 422, 423-424 (2013), S.C., 473 Mass. 832 (2016), we affirmed our decision in Commonwealth v. Clarke, 460 Mass. 30 (2011), that, under Massachusetts law, defense counsel’s duty to provide noncitizen defendants with accurate advice regarding the deportation consequences of pleading guilty (or being convicted at trial), as articulated by the United States Supreme Court in Padilla v. Kentucky, 559 U.S. 356, 360 (2010), was to be applied retroactively on collateral review.[1] See Clarke, supra at 31. We set the date of retroactivity at April 1, 1997, the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (IIRIRA), which, together with the enactment of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (effective Apr. 24, 1996) (AEDPA), made deportation for noncitizens convicted of certain criminal offenses virtually inevitable. See Padilla, supra at 363-364. See also Clarke, supra at 41. The offense to which the defendant pleaded guilty is possession of a class A substance (heroin) in violation of G. L. c. 94C, § 34. Although he received a suspended sentence, the statute provides for a possible penalty of up to two years in a house of correction, and consequently, deportation was virtually inevitable under the provisions of AEDPA.[2] His guilty plea was entered after the effective date of AEDPA, but before […]
Public Employee Retirement Administration Commission v. Bettencourt (Lawyers Weekly No. 10-047-16)
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-11906 PUBLIC EMPLOYEE RETIREMENT ADMINISTRATION COMMISSION vs. EDWARD A. BETTENCOURT. Suffolk. October 6, 2015. – April 6, 2016. Present (Sitting at New Bedford): Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Public Employee Retirement Administration Commission. Retirement. Public Employment, Retirement benefits, Forfeiture of retirement benefits. Constitutional Law, Excessive fines clause. Civil action commenced in the Superior Court Department on December 19, 2012. The case was heard by Garry V. Inge, J., on motions for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Paul T. Hynes (Michael R. Keefe with him) for the defendant. Peter Sacks, State Solicitor (Judith A. Corrigan, Special Assistant Attorney General, with him) for the plaintiff. Ian O. Russell & Patrick N. Bryant for Massachusetts Coalition of Police, amicus curiae, submitted a brief. BOTSFORD, J. The Commonwealth’s law governing public employee retirement systems and pensions requires that a public employee forfeit the retirement and health insurance benefits (retirement allowance or pension) to which the employee would be entitled upon conviction of a crime “involving violation of the laws applicable to [the employee’s] office or position.” G. L. c. 32, § 15 (4) (§ 15 [4]).[1] We consider here whether this mandatory forfeiture of a public employee’s retirement allowance qualifies as a “fine” under the excessive fines clause of the Eighth Amendment to the United States Constitution. We conclude that it does and that, in the circumstances of this case, the mandatory forfeiture of the public employee’s retirement allowance is “excessive.”[2] Background.[3] Edward A. Bettencourt was first appointed as a police officer in the city of Peabody in October, 1980, and became a member of the Peabody retirement system on November 7, 1982.[4] Bettencourt was promoted to the rank of sergeant around 1990, and promoted again to serve as a lieutenant in 2003. In the early morning hours of December 25, 2004, Bettencourt was on duty as a watch commander, and he knowingly accessed, through theInternet and without permission, the Massachusetts human resources division (HRD) computer system, and specifically the HRD Internet site containing individual applicant record information. Gaining the unauthorized access, he viewed the civil service promotional examination scores of twenty-one other police officers, including four officers who were his direct competitors […]
Categories: News Tags: 1004716, Administration, Bettencourt, Commission, Employee, Lawyers, Public, Retirement, Weekly