Hensley, et al. v. Attorney General, et al; Allen, et al. v. Attorney General, et al. (Lawyers Weekly No. 10-093-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12106 SJC-12117 JOSEPHINE HENSLEY & others[1] vs. ATTORNEY GENERAL & another.[2] MATTHEW JOHN ALLEN & others[3] vs. ATTORNEY GENERAL & another.[4] Suffolk. June 8, 2016. – July 6, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Initiative. Constitutional Law, Initiative petition. Attorney General. Marijuana. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on April 22, 2016. The case was reported by Duffly, J. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on May 10, 2016. The case was reported by Spina, J. John S. Scheft for Josephine Hensley & others. Robert E. Toone, Assistant Attorney General, for the defendants. Thomas R. Kiley for Matthew John Allen & others. David G. Evans, of New Jersey, for Massachusetts Hospital Association & others, amici curiae, submitted a brief. GANTS, C.J. We have before us two cases involving an initiative petition that, if approved by the voters in the November, 2016, election, would legalize, regulate, and tax marijuana and products that contain marijuana concentrate. The plaintiffs in the first case (Hensley case) claim that the Attorney General erred in certifying the petition for inclusion on the ballot under art. 48 of the Amendments to the Massachusetts Constitution because it contains subjects that are not related or mutually dependent. They also claim that the Attorney General’s summary of the measure is not fair. Finally, they contend that, if the question is to be included on the ballot, we should require the Attorney General and the Secretary of the Commonwealth (Secretary) to amend the title and the one-sentence statements they prepared because they are clearly misleading, in violation of G. L. c. 54, § 53. The plaintiffs in the second case (Allen case) include eleven of the original fifteen signers of the initiative petition. They challenge only the title and the one-sentence “yes” statement prepared by the Attorney General and the Secretary, but on grounds different from those alleged by the Hensley plaintiffs. We conclude that the Attorney General did not err in certifying the petition for inclusion on the ballot under art. 48 because the petition contains only related subjects. We also conclude that her summary of it is fair. Finally, we conclude that it is clear that the […]
Allen v. Allen (Lawyers Weekly No. 11-056-16)
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-643 Appeals Court JULIA ALLEN vs. BARBARA ALLEN. No. 15-P-643. Suffolk. February 24, 2016. – May 19, 2016. Present: Green, Wolohojian, & Henry, JJ. Abuse Prevention. Moot Question. Practice, Civil, Moot case. Domestic Violence Record Keeping System. Complaint for protection from abuse filed in the Central Division of the Boston Municipal Court Department on April 3, 2015. A hearing to extend an abuse prevention order was had before Robert J. McKenna, Jr., J. Kathleen M. McCarthy for the defendant. GREEN, J. Does an appeal lie from an ex parte abuse prevention order issued pursuant to G. L. c. 209A, in circumstances where the order was terminated ten days later at a hearing after notice pursuant to c. 209A, § 4? We conclude that termination of the ex parte order at the hearing after notice, accompanied by an order directing law enforcement agencies “to destroy all record of such vacated order,” renders the defendant’s appeal moot. G. L. c. 209A, § 7, as appearing in St. 1990, c. 403, § 8. We accordingly dismiss the appeal. Background. On April 3, 2015, the plaintiff filed a complaint for protection from abuse pursuant to G. L. c. 209A, seeking a restraining order against the defendant (her mother). In the affidavit filed with her complaint, the plaintiff averred that: “Back in 2008, I cut ties w/ her and asked her to no longer contact me. Since then, I had to change my phone number, I’ve moved multiple times, had to keep an external mailbox in order to keep my residential address private, but she keeps finding me & mailing me things. For years I’ve returned them to the sender. Once I moved to Boston there was no mail until 4/3/15 when she mailed a package to my work address — I’ve never given her the address, but she somehow tracked it down.” A judge of the Central Division of the Boston Municipal Court Department held a hearing that day, at which the plaintiff was the only party present and the only witness. The colloquy at the hearing added little to the averments in the affidavit.[1] On the basis of the plaintiff’s presentation, the judge issued an ex parte order, based on a determination “that there is a substantial likelihood of immediate danger of abuse,” which ordered the defendant (i) not to abuse the plaintiff; (ii) not to […]
Commonwealth v. Allen (Lawyers Weekly No. 10-054-16)
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-11850 COMMONWEALTH vs. JAMES ALLEN. Suffolk. December 10, 2015. – April 20, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Homicide. Firearms. Defense of Others. Practice, Criminal, Instructions to jury. License. Constitutional Law, Right to bear arms. Indictments found and returned in the Superior Court Department on February 1, 2011. The cases were tried before Patrick F. Brady, J. The Supreme Judicial Court granted an application for direct appellate review. Matthew V. Soares for the defendant. Amanda Teo, Assistant District Attorney (Jennifer J. Hickman, Assistant District Attorney, with her) for the Commonwealth. Levi W. Swank, of the District of Columbia, & David A.F. Lewis & Stephen D. Poss, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. CORDY, J. On March 21, 2012, a jury convicted the defendant, James Allen, of murder in the second degree,[1] and of carrying a firearm without a license, possession of ammunition without a firearms identification card, and possession of a large capacity firearm feeding device without a license.[2] At trial, his defense was that he was justified in using deadly force because he was coming to defense of a friend (Shawn Buchanan) who was being threatened with deadly force by the victim, Senai Williams. The defendant timely appealed his conviction, and we granted his application for direct appellate review. On appeal, he raises several claims. First, he argues that the trial judge’s instruction to the jury on defense of another was incorrect because it improperly suggested that the defendant may have had a duty to retreat, and because it negated the possibility of a finding of so-called excessive force manslaughter by instructing that the defendant was required to avail himself of available alternatives before employing deadly force and that if the Commonwealth proved that the defendant used excessive force then it had proved that he did not act in lawful defense of another. The defendant also claims error based on misstatements by the prosecutor in closing argument; the admission of irrelevant and prejudicial testimony; insufficient evidence supporting the firearms convictions; and constitutional violations in connection with the firearm indictments. We conclude that portions of the jury instructions concerning excessive force manslaughter were erroneous and prejudicial. Accordingly, we reverse the defendant’s conviction of murder in […]
Allen v. Allen (Lawyers Weekly No. 11-115-14)
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-605 Appeals Court DEBORAH A. ALLEN[1] vs. HAROLD J. ALLEN, JR. No. 13-P-605. Suffolk. February 12, 2014. – September 16, 2014. Present: Trainor, Katzmann, & Hanlon, JJ. Deed, Acknowledgement. Real Property, Deed, Conveyance, Record title. Notice. Practice, Civil, Failure to make objection, Motion to amend. Civil action commenced in the Land Court Department on January 19, 2010. A motion to amend a counterclaim was heard by Gordon H. Piper, J., the case was tried before him, and a motion to amend the judgment or for a new trial was considered by him. Helen G. Litsas for the defendant. Amy M. McCallen for the plaintiff. KATZMANN, J. This case concerns competing claims between adult siblings for the ownership of the house formerly owned by their now-deceased parents. Harold Allen, Jr., (Harold) traces his ownership to a July, 2001, deed (July deed) from the siblings’ mother, Ethel Allen (Ethel). Harold’s sister Deborah Allen (Deborah) claims ownership by virtue of a November, 2001, deed (November deed) from Ethel to the Allen Realty Trust (Trust), of which Deborah was a cotrustee along with Ethel. Deborah brought an action alleging that the July deed was forged and claiming that the property was rightfully hers.[2] Following a jury-waived trial, a judge of the Land Court determined that, because the acknowledgment of the July deed was defective, its recording did not give constructive notice to Deborah of the conveyance and the deed was not enforceable against her. This is an issue of first impression, not yet addressed by our appellate courts. On appeal, Harold argues (1) pursuant to exceptions provided in the recording statute, his deed was not required to be recorded, or, alternatively,the recording statute’s safe harbor provision protects his claim to the property; (2) the judge’s decision exceeded the scope of the pleadings; (3) because of clearly erroneous findings, there was insufficient evidence to support the judgment; and (4) the judge erred in denying Harold’s motion to amend his counterclaim. We affirm. Background. We summarize the relevant facts as found by the judge in his memorandum of decision and postjudgment order, supplemented as necessary with undisputed facts from the record. We reserve certain details for discussion with the specific issues raised. Deborah and Harold are two of the six children of Ethel and Harold Allen, Sr. (Harold, Sr.). […]