Craft Beer Build, LLC v. Alcoholic Beverages Control Commission (Lawyers Weekly No. 09-022-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 16-809-D ________________________ CRAFT BEER GUILD, LLC d/b/a CRAFT BREWERS GUILD, Plaintiff, vs. ALCOHOLIC BEVERAGES CONTROL COMMISSION Defendant. ________________________ MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS The plaintiff Craft Beer Guild, LLC d/b/a/ Craft Brewers Guild (“Craft”) is appealing an adjudicatory decision, dated February 12, 2016 (“Decision”) of the Alcoholic Beverages Control Commission (“ABCC” or “Commission”) under G. L. c. 30A, § 14. After the ABCC filed the Administrative Record (A.R.) and a Supplemental Administrative Record (S.A.R.) on September 22, 2016, Craft filed its “Plaintiff Craft Beer Guild, LLC d/b/a/ Craft Brewers Guild’s Motion for Judgment on the Pleadings” (“Motion”) on June 29, 2017, pursuant to Superior Court Standing Order 1-96 as amended.1 After a hearing on the Motion on September 12, 2017, at which the Court heard from both parties, the Court DENIES THE MOTION. 1 Craft has not helped its cause by filing a brief with what appears to be less than 12-point font, in violation of Superior Court Rule 9A(a)(5). As predicted in the Court’s endorsement of March 20, 2017, this added verbiage has only resulted in diverting focus and attention from Craft’s strongest arguments. 2 BACKGROUND Craft is a wholesaler of alcoholic beverages licensed under G.L. c. 138, § 18. It distributes about 200 craft beer brands to, among others, retailers such as restaurants and bars licensed under G.L. c. 138, § 12 for consumption of alcohol. In October 2014, one of the owners of a Crafts-distributed brand tweated allegations that its brand had been removed from the tap at Boston location because Massachusetts suppliers and wholesalers were making unlawful payments to retail licensees in exchange for those retailers carrying Craft brands. The Commission began an investigation, which lasted about seven months and resulted in a Violation Report. The Violation Report led to administrative charges against Craft for violation of the price discrimination law (G.L. c. 138, § 25A(a)) and of 204 Code Mass. Regs. § 2.04(1), quoted below. The ABCC had not previously brought such a proceeding against any licensee under § 2.08. During the proceedings, Craft stipulated to the facts in the Violation Report. After adjudicatory hearings, the ABCC found that Craft violated 204 CMR 2.08 and G.L. c. 138, § 25A. Based on the stipulated facts, the Commission found that in 2013 and 2014, Craft negotiated and implemented a series of schemes between itself, numerous retail licensees and certain third-party management companies that managed the retail licensees. Craft negotiated payment arrangements with the third-party management companies in exchange for tap lines committed to Craft brands at retail licensees that those companies managed. Generally, the payments were either […]
Andrade, et al. v. City of Somerville (Lawyers Weekly No. 11-139-17)
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 16-P-1407 Appeals Court CARLOS ANDRADE & others[1] vs. CITY OF SOMERVILLE. No. 16-P-1407. Middlesex. September 13, 2017. – October 30, 2017. Present: Massing, Kinder, & Ditkoff, JJ. Massachusetts Tort Claims Act. Firearms. License. Governmental Immunity. Municipal Corporations, Governmental immunity. Negligence, Governmental immunity. Police, Negligence. Practice, Civil, Motion to dismiss. Civil action commenced in the Superior Court Department on November 9, 2015. A motion to dismiss was heard by Maureen B. Hogan, J. David P. Shapiro, Assistant City Solicitor, for the defendant. Keith J. Nicholson for the plaintiffs. MASSING, J. This appeal concerns the scope of § 10(e) of the Massachusetts Tort Claims Act, G. L. c. 258, which exempts public employers from liability in tort with respect to “any claim based upon the issuance, denial, suspension or revocation or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization.” G. L. c. 258, § 10(e), inserted by St. 1993, c. 495, § 57. Plaintiff Carlos Andrade was grievously and permanently injured when Santano Dessin shot him in the neck, shattering Andrade’s spine and leaving him paralyzed from the neck down. The plaintiffs allege that the gun Dessin used to shoot Andrade had been wrongly returned to Dessin by defendant city of Somerville (city) and the Somerville police department (department) after the department had previously confiscated it in the course of revoking Dessin’s license to carry firearms. We conclude that the city’s conduct was “based upon” licensing activity described in § 10(e) and that the city is accordingly exempt from suit. Background. Because this appeal comes to us on interlocutory review of the denial of the city’s motion to dismiss,[2] we accept the facts as alleged in the plaintiffs’ complaint. See Kent v. Commonwealth, 437 Mass. 312, 317 (2002); Greenleaf Arms Realty Trust I, LLC v. New Boston Fund, Inc., 81 Mass. App. Ct. 282, 288 (2012). In January, 2010, the department notified Dessin that his license to carry had been revoked because of a disqualifying adjudication of delinquency that appeared on his juvenile record. The department took possession of three firearms belonging to Dessin.[3] Dessin appealed the department’s decision, and a Superior Court judge determined that Dessin was permitted to possess firearms. Following the judge’s ruling, although the department was awaiting a decision of the Massachusetts […]
Saliba v. City of Worcester (Lawyers Weekly No. 11-137-17)
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 16-P-591 Appeals Court PHILIP SALIBA vs. CITY OF WORCESTER. No. 16-P-591. Worcester. February 14, 2017. – October 27, 2017. Present: Green, Meade, & Agnes, JJ. Practice, Civil, Motion to dismiss. Public Employment, Polygraph test. Statute, Construction. Civil action commenced in the Superior Court Department on March 27, 2015. A motion to dismiss was heard by James R. Lemire, J. Allyson H. Cohen for the plaintiff. William R. Bagley, Jr., Assistant City Solicitor, for the defendant. AGNES, J. Massachusetts law prohibits employers, public as well as private, from subjecting applicants for employment, as well as employees, to a “lie detector test,” whether the test is administered in this State or elsewhere. G. L. c. 149, § 19B.[1] The statute includes safeguards for employees who assert their rights, provides criminal penalties for those who violate the statute, and permits persons aggrieved by a statutory violation to bring a civil action against the violator for injunctive relief and damages.[2] This appeal requires us to address a question of first impression, namely, whether § 19B(2) prohibits a Massachusetts employer from considering the results of a lie detector test administered lawfully by an out-of-State employer in connection with an individual’s earlier application for employment in another State.[3] For the reasons that follow, we conclude that § 19B(2) does not apply in the circumstances of this case, and accordingly, we affirm the judgment dismissing the plaintiff’s complaint. The plaintiff, Philip Saliba, alleges that the defendant, the city of Worcester (city), violated G. L. c. 149, § 19B(2), by obtaining and referring to a copy of the plaintiff’s lie detector (polygraph) test results from his application for a job with the Connecticut State police (CSP). The judge below allowed the defendant’s motion to dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. 747 (1974), and judgment entered accordingly. The plaintiff filed a timely appeal. Background. 1. 2007 CSP and Worcester police department applications. The plaintiff’s claim is based on the following series of events, which are summarized in his complaint. In 2007, the plaintiff, an honorably discharged United States Marine Corps veteran, was working full time as a plumber. He applied for a job with the CSP. As part of the hiring process, the plaintiff voluntarily underwent a polygraph examination.[4] On January 18, 2008, the plaintiff was informed that the reason he was […]
Commonwealth v. Smith (Lawyers Weekly No. 11-138-17)
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 16-P-406 Appeals Court COMMONWEALTH vs. ANTONIO A. SMITH. No. 16-P-406. Plymouth. April 5, 2017. – October 27, 2017. Present: Meade, Hanlon, & Maldonado, JJ. Controlled Substances. Evidence, Expert opinion. Witness, Expert. Indictment found and returned in the Superior Court Department on July 11, 2014. The case was tried before Robert C. Cosgrove, J. Nancy A. Dolberg, Committee for Public Counsel Services, for the defendant. Nathaniel Kennedy, Assistant District Attorney, for the Commonwealth. HANLON, J. After a jury trial, the defendant was convicted of possession of a class B substance, crack cocaine, with intent to distribute.[1] He now argues that the improper admission of an expert witness’s “profiling” testimony impinged on the jury’s fact-finding role and created a substantial risk of a miscarriage of justice. For the following reasons, we affirm. Background. We summarize the facts as the jury could have found them, based upon the evidence admitted. On April 22, 2014, officers of the Brockton Police narcotics unit were watching an area near the intersection of North Cary Street and East Ashland Street. At 9:30 A.M., Detective Mercurio observed a green Volvo driving slowly; the driver was talking on a cellular telephone while leaning her head out of the window and looking around at nearby parking lots. After driving back and forth through the intersection, the Volvo came to a stop in the parking lot of a nearby liquor store that was closed. Neither the driver, nor the other occupants, a male and a child in the backseat, got out of the car. A few minutes later, the officers saw the defendant walking down North Cary Street; he went directly to the Volvo and got into the front passenger seat. About one minute later, the Volvo drove out of the parking lot and south on North Cary Street, turning onto Ashfield Drive, then stopping at an intersection on Anawan Street, a short distance from the original pick up location; the defendant got out of the car there. Shortly afterwards, Mercurio drove his unmarked police car past the Volvo, which was stopped at the next intersection. The defendant, having left the Volvo, was walking in the travel lane of the street in Mercurio’s direction; the detective then stopped his car and said “hey,” and the defendant walked […]
Commonwealth v. Villalobos (Lawyers Weekly No. 10-171-17)
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-12185 COMMONWEALTH vs. ANTHONY VILLALOBOS. October 26, 2017. Practice, Criminal, Jury and jurors, Conduct of juror, Voir dire. Anthony Villalobos appeals from his convictions of involuntary manslaughter, as a lesser included offense of murder in the second degree, and assault and battery and from the denial of his motion for a new trial. The Appeals Court affirmed his convictions in a divided opinion. Commonwealth v. Villalobos, 89 Mass. App. Ct. 432 (2016). See id. at 444-447 (Rubin, J., dissenting). We granted Villalobos’s application for further appellate review, 475 Mass. 1102 (2016), and now reverse the convictions and remand for a new trial. Sleeping jurors. The issue that divided the Appeals Court was the trial judge’s failure to conduct a voir dire after the prosecutor reported that some jurors fell asleep during the trial. “[A] judicial observation that a juror is asleep, or a judge’s receipt of reliable information to that effect, requires prompt judicial intervention.” Commonwealth v. McGhee, 470 Mass. 638, 643-644 (2015), quoting Commonwealth v. Beneche, 458 Mass. 61, 78 (2010). “[I]f a judge receives a complaint or other information suggesting that a juror was asleep or otherwise inattentive, the judge must first determine whether that information is ‘reliable.’” McGhee, supra at 644. If the judge determines that the information is not reliable, no intervention is necessary. See Commonwealth v. Vaughn, 471 Mass. 398, 412-413 (2015) (where counsel’s assertions that juror was sleeping during charge were not found reliable, judge did not abuse discretion by taking no further action). If, however, the judge does find the information reliable, he or she “must take further steps to determine the appropriate intervention.” McGhee, supra. “Typically, the next step is to conduct a voir dire of the potentially inattentive juror, in an attempt to investigate whether that juror ‘remains capable of fulfilling his or her obligation to render a verdict based on all of the evidence.’”[1] Id., quoting Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 181 (2009). The judge has “substantial discretion in this area,” and on appeal, “[t]he burden is on the defendant to show that the judge’s response to information about a sleeping juror was ‘arbitrary or unreasonable.’” McGhee, supra, quoting Beneche, supra. Villalobos has met his burden. Indeed, this case is much like McGhee, in which we determined that the […]
Categories: News Tags: 1017117, Commonwealth, Lawyers, Villalobos, Weekly
Phillips v. Equity Residential Management, L.L.C. (Lawyers Weekly No. 10-169-17)
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-12247 SCOTT PHILLIPS[1] vs. EQUITY RESIDENTIAL MANAGEMENT, L.L.C. Suffolk. May 1, 2017. – October 25, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[2] Landlord and Tenant, Security deposit, Multiple damages. Statute, Construction. Certification of a question of law to the Supreme Judicial Court by the United States Court of Appeals for the First Circuit. Joshua N. Garick (David Pastor & Preston W. Leonard also present) for the plaintiff. Craig M. White, of Illinois (Thomas H. Wintner also present) for the defendant. The following submitted briefs for amici curiae: Jeffrey J. Pokorak, Catherine Dowie, & John Pierce Wilton for Accelerator-to-Practice Program of Suffolk University Law School & others. Lawrence J. Farber for Greater Boston Real Estate Board. Alex Mitchell-Munevar & Joseph Michalakes for City Life/Vida Urbana. BUDD, J. Where a landlord’s itemized list of deductions from a tenant’s security deposit does not comply with the requirements of the Security Deposit Act, G. L. c. 186, § 15B (act), the landlord forfeits the right to retain any part of that deposit. See G. L. c. 186, § 15B (6). In certain circumstances the landlord must pay the tenant treble damages, interest, costs, and attorney’s fees, pursuant to § 15B (7). In a certified question, the United States Court of Appeals for the First Circuit asks whether a tenant is entitled to treble the amount of the entire security deposit under § 15B (7) where a landlord fails to provide to the tenant a statement of damages that meets the statutory requirements, see § 15B (4) (iii), second sentence, thereby forfeiting the entire security deposit, see § 15B (6) (b), and also fails to return that forfeited deposit within thirty days after the termination of the tenancy. See Phillips v. Equity Residential Mgt., L.L.C., 844 F.3d 1, 7-8 (1st Cir. 2016). We conclude that the Legislature did not intend for the treble damages provision in § 15B (7) to apply to a landlord’s violation of the requirements for an itemized list set out in § 15B (4) (iii), second sentence, or to the amount forfeited for violation of § 15B (6) (b), and accordingly answer the certified question no.[3] Background. We recite relevant facts presented by the Court of Appeals in its opinion, see Phillips, 844 F.3d at 3-4, along with […]
Categories: News Tags: 1016917, Equity, L.L.C., Lawyers, Management, Phillips, Residential, Weekly
Da Costa, et al. v. Vanguard Cleaning Systems, Inc. (Lawyers Weekly No. 09-021-17)
COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT CIVIL ACTION 15-04743 LUIZ THOMAZ DA COSTA & others[1] vs. VANGUARD CLEANING SYSTEMS, INC. MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT The plaintiffs, Luiz Thomaz Da Costa and others, and the defendant, Vanguard Cleaning Systems, Inc. (“Vanguard”), have filed cross motions for summary judgment seeking a ruling on the plaintiffs’ employment classification status under the laws of Massachusetts and Connecticut in connection with commercial cleaning work which the plaintiffs claim they performed on behalf of Vanguard. G.L. c. 149, § 148B; Conn. Gen. Stat. § 31-222(a)(1)(B). After hearing, and upon review and consideration, the plaintiffs’ cross-motion for summary judgment is ALLOWED, and Vanguard’s cross-motion for summary judgment is DENIED. BACKGROUND The undisputed facts, and any disputed facts viewed in the light most favorable to the non-moving party, are as follows. Additional facts are reserved for discussion below.[2] Vanguard is a corporation headquartered in California that operates a three-tier franchise system selling commercial cleaning services. Vanguard sells licenses to use its name and trademarked Vanguard Cleaning Systems in defined geographic areas to regional master franchisees. Regional master franchisees, in turn, enter into franchise agreements with unit franchisees, which conduct commercial cleaning. [3] Vanguard receives four percent of regional master franchisees’ gross revenue, which consists of payments for commercial cleaning and fees levied on unit franchisees.[4] Vanguard solicits business through national sales bids, and offers quotes to prospective customers on its website; Vanguard’s website forwards cleaning account leads to regional master franchisees. Regional master franchisees implement Vanguard’s commercial cleaning framework. Vanguard provides regional master franchisees with extensive operating instructions, forms, and templates. Vanguard authored the franchise agreements that regional master franchisees and unit franchisees execute, but is a non-signatory to these agreements. Vanguard also drafted the franchise disclosure document, operations manual, cleaning safety manual, and commercial cleaning information manual. Additionally, Vanguard supplies regional master franchisees with accounting software and templates, which include franchise agreements and account acceptance forms. Unit franchisees must meet current and future standards outlined in Vanguard’s operations manual. Vanguard requires that unit franchisees form independent entities to conduct cleaning services. Vanguard prohibits unit franchisees from billing client accounts for cleaning supplies; unit franchisees must purchase their own supplies. Vanguard imposes minimum standard service requirements, along with detailed instructions on how to clean commercial spaces. Vanguard also requires that unit franchisees attend a mandatory training program, and emphasizes that unit franchisees are subject to Vanguard’s quality control standards. Vanguard outlines a series of inspections and oversight methods in its operations manual. For example, Vanguard representatives routinely conduct room-by-room quality control inspections if the client […]
In the Matter of Corbett (Lawyers Weekly No. 10-170-17)
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-12305 IN THE MATTER OF WILLIAM P. CORBETT, JR. October 25, 2017. Attorney at Law, Disciplinary proceeding, Disbarment, Commingling of funds. Conversion. A single justice of this court ordered that the respondent, William P. Corbett, Jr., be disbarred from the practice of law for conduct including intentional conversion of funds belonging to two clients, causing deprivation for both. The respondent concedes that his conduct violated the rules of professional conduct applicable to attorneys; he appeals only the sanction imposed as being too harsh.[1] We affirm. Background. Bar counsel filed a five-count petition for discipline with the Board of Bar Overseers (board). Three counts concerned the most serious allegations, charging that the respondent intentionally misused client funds, with deprivation resulting, and that he made various misrepresentations to the clients. One count alleged that the respondent failed to comply with the rules of professional conduct regarding client trust accounts. The final count charged that the respondent failed to cooperate and made misrepresentations during bar counsel’s investigation of the respondent’s conduct, and that he violated the terms of the resulting suspension from the practice of law. The respondent answered the petition, and the matter was referred to a hearing committee of the board. After a hearing, the hearing committee issued its report and recommended that the respondent be disbarred. The board voted to accept the report and recommendation. Pursuant to S.J.C. Rule 4:01, § 8 (6), as appearing in 453 Mass. 1310 (2009), bar counsel filed an information in the county court. After a hearing, the single justice concluded that the hearing committee’s factual findings, all of which were adopted by the board, were supported by substantial evidence, accepted the recommended sanction, and entered a judgment of disbarment. Discussion. The respondent has acknowledged the most serious allegations of misconduct, i.e., those involving misappropriation of client funds, and it is unnecessary to our decision to consider other evidence of misconduct. Instead, we focus on the question of sanction. While each case is unique, and every offending attorney must receive the sanction most appropriate in the circumstances, the common, overarching factor for our consideration in all cases “is the effect upon, and perception of, the public and the bar.” Matter of Alter, 389 Mass. 153, 156 (1983). That factor is promoted by “even-handed results […]
Commonwealth v. Keown (Lawyers Weekly No. 10-168-17)
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-10593 COMMONWEALTH vs. JAMES KEOWN. Middlesex. February 10, 2017. – October 23, 2017. Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ. Homicide. Constitutional Law, Search and seizure, Probable cause. Search and Seizure, Computer, Warrant, Affidavit, Probable cause. Probable Cause. Evidence, Information stored on computer, Relevancy and materiality, Inflammatory evidence, Prior misconduct, Hearsay, State of mind, Motive. Practice, Criminal, Capital case, Motion to suppress, Argument by prosecutor, Instructions to jury. Dangerous Weapon. Indictment found and returned in the Superior Court Department on November 3, 2005. A pretrial motion to suppress evidence was heard by Sandra L. Hamlin, J., and the case was tried before her. Claudia L. Bolgen for the defendant. Jamie M. Charles, Assistant District Attorney, for the Commonwealth. Eoghan Casey, pro se, amicus curiae, submitted a brief. Gregory T. Nojeim, of the District of Columbia, & Andrew Crocker & Stephanie Lacambra, of California, & Donald S. Bronstein, Committee for Public Counsel Services, & Chauncey B. Wood, Matthew R. Segal, Jessie J. Rossman, Alexis L. Shapiro, & Margaret L. Sullivan, for Massachusetts Association of Criminal Defense Lawyers & others, amici curiae, submitted a brief. LOWY, J. The jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation for poisoning his wife, Julie Keown. On appeal, the defendant argues that (1) the trial judge erred in denying a motion to suppress certain computer evidence because the warrant used to obtain the evidence was defective; (2) the trial judge abused her discretion in declining to exclude evidence related to the defendant’s computer username and Internet search results, the defendant’s prior bad acts, and the victim’s statements and electronic mail (e-mail) messages; (3) the prosecutor’s closing argument was improper; and (4) the trial judge’s instruction to the jury on the inference of malice lowered the Commonwealth’s burden of proof. We affirm the defendant’s conviction and decline to grant relief under G. L. c. 278, § 33E.[1] Background. We summarize the facts that could have been found by the jury and reserve certain details for the discussion of the issues. On September 4, 2004, the defendant took his wife, the victim, to Newton-Wellesley Hospital (hospital), where she lapsed into a coma from which she would never recover. The victim died on September 8 after being removed from […]
Care and Protection of Walt (Lawyers Weekly No. 10-167-17)
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-12295 CARE AND PROTECTION OF WALT.[1] Worcester. May 1, 2017. – October 20, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[2] Department of Children & Families. Minor, Custody, Temporary custody. Parent and Child, Custody of minor. Appeals Court, Appeal from order of single justice. Jurisdiction, Equitable. Petition filed in the Worcester County Division of the Juvenile Court Department on June 2, 2016. A hearing on continuation of an ex parte emergency order granting temporary custody was had before Anthony J. Marotta, J. A petition for interlocutory review was heard in the Appeals Court by Judd J. Carhart, J.; motions for reconsideration and for a stay were also heard by him, and his order was reported by him to a panel of the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Ann Balmelli O’Connor, Committee for Public Counsel Services, for the father. Bryan K. Clauson (Marianne W.B. MacDougall also present) for the child. Richard A. Salcedo for Department of Children and Families. Evan D. Panich, Katrina C. Rogachevsky, Jessica Berry, Susan R. Elsen, & Jamie Ann Sabino, for Children’s Law Center of Massachusetts & others, amici curiae, submitted a brief. GANTS, C.J. Under G. L. c. 119, § 29C, if a Juvenile Court judge grants temporary custody of a child to the Department of Children and Families (department), the judge “shall certify that the continuation of the child in his home is contrary to his best interests and shall determine whether the department . . . has made reasonable efforts prior to the placement of a child with the department to prevent or eliminate the need for removal from the home.” In this opinion, we resolve three legal issues regarding the reasonable efforts determination. First, we hold that a judge must make a reasonable efforts determination when issuing an order transferring custody of the child to the department for up to seventy-two hours at the emergency hearing, and must revisit that determination at the temporary custody hearing that must follow, commonly known as the “seventy-two hour hearing,” if the judge continues the department’s temporary custody of the child. Second, § 29C provides that reasonable efforts by the department prior to removal of a child from the home are not required […]